Samuel Rogerson v Pure Espresso Pty Ltd

[2015] FWC 7571

[2015] FWC 7571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samuel Rogerson
v
Pure Espresso Pty Ltd
(U2015/10251)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 NOVEMBER 2015

Application for relief from unfair dismissal - application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 25 August 2015 Mr Rogerson lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Pure Espresso Pty Ltd (Pure Espresso). In its Employer’s Response (Form F3) to the application Pure Espresso objected to the application on the basis that it asserted that Mr Rogerson had not been dismissed at the initiative of the employer.

[2] Mr Rogerson’s application was the subject of a telephone conciliation conference on 24 September 2015 but was not resolved in this conference. It was referred to me for determination.

[3] The application was listed for a telephone directions conference on 8 October 2015. Mr Rogerson was provided with a Notice of Listing to this effect on 29 September 2015 and a reminder, on 7 October 2015. Notwithstanding this, he did not participate in the conference. At the directions conference Mr Rogerson’s application was listed for a determinative conference on 28 October 2015. Directions were then issued explaining that the conference on 28 October 2015 would consider the Pure Espresso objection to the application which was made on the basis that Mr Rogerson was not dismissed and had resigned his employment. The directions issued dealt with the capacity of the parties to seek to be represented by a lawyer or paid agent. These directions then stated:

“[4] The FAIR WORK COMMISSION DIRECTS both parties to file in the Commission and serve on each other:

• An outline of their respective positions about whether Mr Rogerson was dismissed. Please note that I have also attached a copy of s.386 of the FW Act which defines dismissal.

• A witness statement for any witness to be called, and
• A copy of any document which is relied upon.

[5] An explanation of these terms is attached.

[6] Pure Espresso Pty Ltd is to comply with this direction by close of business 15 October 2015. Mr Rogerson is to comply with this direction by close of business 22 October 2015.

[7] Compliance with these directions is mandatory and a failure to do so may disadvantage the party concerned. Given that Mr Rogerson did not participate in this directions conference I take this opportunity to draw to the attention of the parties, the provisions of ss.399A and 400A of the FW Act. If Mr Rogerson does not intend to pursue his application he should provide immediate notice of his position in this respect because a delay in the provision of that advice may be regarded as an unreasonable act for the purposes of s.400A. Further, in the event that Mr Rogerson does not comply with the directions set out in this advice, he should be aware that the determinative conference listed for 28 October 2015 is likely to be cancelled and I may also conclude that he no longer seeks to pursue the application. Any enquiries with respect to these directions should be addressed to my office on tel: [phone] or email: [email protected]”

[4] Pure Espresso complied with these directions and provided an outline of its position together with four witness statements. Mr Rogerson did not comply with these directions. On 23 October 2015 Pure Espresso applied to have his application dismissed pursuant s.399A of the FW Act on the basis that Mr Rogerson had failed to attend the directions conference and had failed to comply with the directions relative to the provision of submissions and witness statements.

[5] On 23 October 2015 I issued further Directions. These Directions recited s.399A and the relevant provisions of my 8 October 2015 directions. They confirmed that the matter would not proceed on 28 October 2015 and relevantly stated:

“[5] Mr Rogerson is DIRECTED to provide to the Commission, a statutory declaration, supported by documented material which confirms his inability or incapacity to:

• participate in the directions conference of 8 October 2015, and

• comply with the direction to file and serve material in support of his application, by close of business 22 October 2015.

[6] That statutory declaration is to be provided to the Fair Work Commission by close of business Monday 2 November 2015. The Fair Work Commission contact details for this purpose are:

Post: Chambers of SDP O’Callaghan, Fair Work Commission

Mailing: PO Box 8072, Station Arcade, Adelaide SA 5000

Street: Level 6, Riverside Centre, North Terrace, Adelaide SA 5000

Facsimile: 08 8308 9864

Email: [email protected]

[7] A copy of this material is to be provided to Mr M Deare of Pure Expresso.

[8] I will consider any information provided by Mr Rogerson consistent with this direction and may invite Pure Expresso to respond to that information.

[9] Absent the provision of information by Mr Rogerson consistent with these directions, or in the event that material does not satisfactorily explain his position, I will dismiss his application pursuant to s.399A on, or shortly after, 2 November 2015.”

[6] On 2 November 2015 Mr Rogerson emailed the following advice relative to his failure to participate in the 8 October 2015 directions conference:

“I am writing this letter as a statutory declaration of my absence during the intended phone call on 8/10/15 to discuss the ongoing case of my unfair dismissal from Pure Espresso Pty Ltd.

The day prior to 8/10/15 I had arranged to have my phone provider switched to another distributor. However I couldn’t make it out to the shopping centre before 5pm and rearranged to finish the swap of provider the following day, knowing that I had my phone conference.

When finally getting my phone switched to my new service provider, I began transferring all my data from my previous phone to my new one. During this lengthy process my housemate received a phone call from my employer asking if I could come in to work. I said yes and went into work without my phone, hence missing my conference call.

I had every intention on taking that phone call however I regrettably missed it, but I did so out of loyalty to my work place. I hope this clears up the confusion around the situation and allows the continuation of this case, as I am still firmly seeking my deserved compensation.”

[7] In addition, Mr Rogerson included further correspondence detailing the basis upon which he considered that he had been dismissed.

[8] Section 399A states:

“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.”

[9] I have concluded that Mr Rogerson’s explanation for failing to attend or participate in the 8 October 2015 directions conference must be characterised simply on the basis that he did not attend and omitted to advise this. Had that been the only matter of non-compliance, it would not have prevented Mr Rogerson from further pursuing his application. It is not uncommon for a party to fail to participate in a directions conference and for directions and a listing to be made in that parties absence. In this case, because Mr Rogerson was given two discrete advices relative to the conference, the conference proceeded and directions were issued. Mr Rogerson does not dispute the extent to which he received a copy of those 8 October 2015 Directions. However, he did not comply with them. He has not provided any reason for his failure to do so and his simple inclusion of a statement in support of his position does not explain why it is that this material was not provided consistent with the 8 October 2015 directions. His failure to comply with those directions prevented the matter from proceeding and caused Pure Espresso to undertake substantial work to no avail.

[10] I note Mr Rogerson communicated with my office on 2 November 2015 and foreshadowed he would provide a declaration regarding the issues raised in my directions of 23 October 2015. He sought advice in this regard and was referred to the directions, particularly paragraph [5] which specifically addressed what he was to provide.

[11] Given the extent to which Mr Rogerson was clearly on notice about the requirement that he comply with those directions and the consequences of non-compliance his lack of any reason for then ignoring those directions represents an unreasonable act. In these circumstances I am satisfied that it would be appropriate to dismiss this application on the basis that Mr Rogerson has unreasonably failed to comply with directions issued by the Commission and has subsequently elected to ignore my directions which gave him an adequate opportunity to explain his non-compliance.

[12] Mr Rogerson’s application will be dismissed pursuant to s.399A of the FW Act on this basis. An Order (PR573577) to this effect will be issued.

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