Russell Penttila v Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol

[2017] FWC 4886

[2017] FWC 4886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Russell Penttila
v
Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol
(U2017/7344)

DEPUTY PRESIDENT DEAN SYDNEY, 22 SEPTEMBER 2017

Application for relief from unfair dismissal – application to dismiss.

[1] On 7 July 2017 Mr Russell Penttila made an application to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Woolworths Limited and Woolworths South Australia Pty Limited T/A Woolworths Petrol(Woolworths).

[2] Woolworths raised a jurisdictional objection to the application on the basis that it was filed one day beyond the time frame prescribed in s.394 of the Act.

[3] Despite Woolworths’ jurisdictional objection they agreed to participate in a conciliation conference held on 4 August 2017. The matter did not settle and was stood over for a period of time to allow Mr Penttila to seek legal advice.

[4] Numerous unsuccessful attempts were made by the conciliator to contact Mr Penttila on 17, 24 and 25 August 2017. Mr Penttila did not return any of these calls.

[5] On 25 August 2017, the Commission advised the parties that it considered conciliation to have been unsuccessful and the application was referred to me.

[6] Later that same day, Woolworths filed a Form F1 seeking the dismissal of Mr Penttila’s application pursuant to s.399A or s.587 of the Act.

[7] The matter was listed to hear Woolworths’ application by telephone at 12.00 noon on 21 September 2017.

[8] At the hearing, Mr Penttila appeared on his own behalf and Mr Paul David appeared on behalf of Woolworths.

Submissions and Evidence

[9] Woolworths submits that Mr Penttila had been provided with significant opportunity to seek legal advice/representation following on from the termination of his employment. Mr Penttila has failed to enact his right to seek legal advice/representation at all times despite the significant timeframe available to him, including the extensions granted by the Commission and agreed to by Woolworths following the conciliation conference on 4 August 2017.

[10] Woolworths submits that whilst not a direct case of failing to comply with a direction of the Commission, Mr Penttila’s failure to respond between 4-16 August 2017, demonstrates a clear disregard for Commission protocols and procedures.

[11] Mr Penttila gave three broad reasons as to why he had not returned any of the Commissions telephone calls:

● That “he did not have the means to respond”;

● That he was “moving house”; and

● That he “needed some time to get my life in order”.

[12] Mr Penttila confirmed that he was now ready to proceed with his application before the Commission.

Relevant Legislation

[13] Sections 399A and 587 of the Act provide:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Conclusion

[14] I am not satisfied that I should dismiss Mr Penttila’s application. To deprive an applicant of their right to have their application determined is a step that should not be taken lightly. This is particularly so in circumstances where Mr Penttila has clearly articulated his desire to continue with his application.

[15] I do not consider there is a proper basis for dismissing the application under s399A of the Act as Mr Pentilla has not unreasonably failed to attend a hearing, comply with a direction, or discontinue his application following a settlement being reached. Woolworths, appropriately, do not claim that any of these circumstances have been satisfied.

[16] Further, I do not consider there is a proper basis for dismissing the application under s.587 of the Act. There is no evidence upon which I could be properly satisfied that the application had not been made in accordance with the Act, the application is frivolous or vexatious, or that the application has no reasonable prospects of success.

[17] I decline Woolworths’ application under both ss.399A and 587 of the Act to have this matter dismissed. The matter will be referred to another Member of the Commission to hear the jurisdictional objection regarding an extension of time. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

R Penttila, on his own behalf

P David for Woolworths Limited and Woolworths (South Australia) Pty Limited

Hearing details:

2017.

Canberra (by telephone).

September 21.

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