Roy Muller v Southern Lock and Security, but, multiple entities involving SLS

[2020] FWC 4025

[2020] FWC 4025

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roy Muller
v
Southern Lock and Security, but, multiple entities involving SLS
(U2020/8664)

COMMISSIONER LEE MELBOURNE, 3 AUGUST 2020

Application for an unfair dismissal remedy – s.399A application to dismiss.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 27 July 2020.

[2] On 23 June 2020, Mr Roy Muller (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was dismissed from his employment with Southern Lock and Security, but, multiple entities involving SLS (the Respondent) on 1 April 2020. The application was made outside of the statutory time period provided in the Act.

[3] Having regard to the circumstances around this matter, I'm satisfied that it is appropriate to dismiss the matter pursuant to s.399A of the Act. I am satisfied that on two occasions, the Applicant has unreasonably failed to attend a conference conducted by the Commission or a hearing held by the Commission in relation to the application.

[4] The Respondent has made a s.399A application for the application to be dismissed and maintains the position that the application should be dismissed. I set out in detail, at the start of the hearing, the factual circumstances and chronology surrounding this matter.

[5] The position in summary is that the Applicant has filed an application that is 62 days out of time. There was a hearing set down for the matter to be heard and dealt with. The Applicant failed to provide a phone number, as directed, and failed to attend that hearing. There was no ability to contact the Applicant, and the Applicant was asked to provide a contact number. Subsequently, the s.399A application was made by the Respondent.

[6] The response of the Applicant to the s.399A application having been made and the response to the directions where the Applicant was asked to provide reasons as to why the Commission should not dismiss the application, including evidence or other documentary materials for his reasons, was in the following terms:

“This is absurd. I am employed and do not have the access to emails that you assume I have. I was under the impression this matter was due to be heard on 24 July. I have a phone number but cannot take time out of working to be able to talk on the phone. Besides, the nature of the work I do is often inside the roof of a house or business. The number is [provided] However, as mentioned, I cannot always access the phone.”

[7] The reason that was proffered in that email is not acceptable. There's no reason why, I can detect, that there should have been any confusion on the Applicant's part as to when the matter was to be heard.

[8] In the subsequent email the Applicant provided, he has blamed the Commission for the confusion because the correspondence referred to a date of 25 July 2020 as opposed to 24 July 2020, which is true and is an error. However, none of that impacted on the fact that the hearing was to be heard on 21 July 2020. So the submissions on that point are not relevant and in any case the Applicant seems to indicate that it would be random as to whether or not he would be able to access the phone and does not provide any clear indication that he will attend any hearing.

[9] As I say, there was an opportunity for the Applicant to advance a case as to why the application should not be dismissed at the 27 July 2020 hearing and for me to explore whether there was the capacity to provide some way that the Applicant could advance his case but again, the Applicant has failed to answer his phone and attend this particular hearing.

[10] In all of the circumstances, I'm not satisfied that the Applicant has provided sufficient reasons as to why the Commission should not dismiss the application and as I have already stated, I am satisfied that the Applicant has unreasonably failed to attend two conferences and/or hearings that have been held by the Commission.

[11] In relation to the s.399A application, the application has been made by the Respondent. The application to dismiss the application is granted for those reasons that I've set out. An order to that effect was separately issued in PR721306.

COMMISSIONER

Appearances:

Mr B. Keech for the Respondent

Hearing details:

2020
Melbourne
27 July

Printed by authority of the Commonwealth Government Printer

<PR721454>