Scott Brown v Servebest Pty Ltd T/A Metromovers

[2014] FWC 7116

[2014] FWC 7116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Brown
v
Servebest Pty Ltd T/A Metromovers
(U2014/10515)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 2 July 2014, Mr Scott Brown lodged an unfair dismissal application under s.394 of the Fair Work Act 2009. Mr Brown alleged that his employment was terminated by Servebest Pty Ltd on 26 June 2014. Servebest denied that Mr Brown had been dismissed.

[2] Both parties were directed to file an outline of submissions, any witness statements and other documentary material by noon, on 8 September 2014 and to file material in response by 29 September 2014.

[3] On 9 September 2014 Mr Steve Grapsas, Mr Brown’s representative advised that he would file the material that afternoon. On the same date, Mr Peter Borain on behalf of Servebest advised that it had not complied and wanted to know if it could have an extension of time to submit the material. Mr Borain was advised that he needed to put that request in writing. Mr Borain advised that he might be able to file on 9 September 2014 and Servebest filed material on 10 September 2014.

[4] The matter was listed for a non compliance hearing before me on 12 September 2014.

[5] Neither Mr Brown or his representative attended the non compliance hearing and no contact was made with the Commission to explain the non attendance. At the non compliance hearing Servebest made an oral application, under to s.399A of the Act, that the matter be dismissed as Mr Brown had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Servebest’s oral application.

[6] On 12 September 2014, Mr Brown was sent correspondence informing him of Servebest’s s.399A application. Mr Brown was directed to file submissions and other documentary material in response to Servebest’s application by close of business, on 22 September 2014. Mr Brown was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Brown did not file any material with the Commission. On 17 September 2014 Mr Grapsas sent the Commission an email in which he advised that Mr Brown had returned to the United Kingdom after his employment was terminated but he would make himself available for any future conciliation. The email advised that “in a genuine attempt to have his name cleared Scott is prepared to call the Commission to have his name cleared and as such indicate we wishes his matter to be re-listed, in any form and we will be representing him at any future conference.”

[8] On 29 September 2014, I caused an email to be sent to Mr Brown and Mr Grapsas advising that Mr Grapsas’ email was not responsive to the application to dismiss. I extended the time for Mr Brown to respond to the application until 3 October 2014. In that email Mr Brown was advised that if no other information was provided the matter would be determined on the papers.

[9] On 3 October 2014, Mr Brown contacted my associate and advised that he had received the email of 29 September 2014. He was advised to speak to his representative as no material had been received by the Commission and his application may be dismissed for non compliance.

[10] On 3 October 2014, Mr Grapsas contacted my chambers and he advised that he would send an email seeking an extension of time.

[11] On 3 October 2014, Mr Grapsas sent a further email advising that he committed “to have my documents to support Steve’s claim to you by COB Monday October 6.”

[12] As at 8 October 2014, no material had been filed by Mr Brown in response to the application to dismiss.

[13] Section 399A of the Act provides as follows:

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.

....

(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.

[14] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[15] As Mr Brown did not file any material in opposition to the application to dismiss there are no factual disputes to be resolved. I will determine the application on the papers.

[16] The power to dismiss is a discretionary. Before the discretion is exercised there must be an application by an employer and relevantly in this case a failure to comply with directions. The Explanatory Memorandum stated that the power to dismiss is “not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.” 1

[17] In Ghalloub v Aon Risk Services Australia Limited 2 a Full Bench identified the considerations relevant to the exercise of discretion to summarily dismiss a matter for non compliance with directions. I adopt the approach outlined there.

[18] Mr Brown is represented in these proceedings. While I accept that Mr Brown is no longer resident in Australia that does not absolve him of his responsibility to comply with directions of the Commission. Mr Brown was aware of the directions as was his representative. Mr Brown and his representative have been given an extended time to respond to the application to dismiss and have not done so. Mr Brown has not taken any steps to prosecute his claim and he has not provided an explanation for his non compliance.

[19] Further despite Mr Grapsas’ advice to the Commission on two occasions, that material in support of Mr Brown’s application would be filed, this has not occurred.

[20] After considering all the material, Mr Brown’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at p36

 2   PR956665 at [24]-[27]

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