Shane Duus v Byford Equipment

[2019] FWC 973

[2019] FWC 973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Duus
v
Byford Equipment
(U2018/11049)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 26 October 2018, Mr Shane Duus made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application indicated that Mr Duus had a legal representative and that his employment had been terminated by Byford Equipment on 5 October 2018.

[2] The matter was listed for conciliation on 20 November 2018, however it did not resolve.

[3] On 27 November 2018, a Notice of Listing was sent to the parties scheduling a Jurisdiction and Arbitration Conference/Hearing on 12-15 February 2019. Directions were also issued for the filing of material. Byford Equipment was directed to file and serve its material in relation to its jurisdictional objection to the application by no later than noon on 20 December 2018, and Mr Duus was directed to file and serve his material in reply and in relation to the merits of his application by no later than noon on 10 January 2019.

[4] Byford Equipment filed its material on 14 December 2018 and at this time, served it on Mr Duus by sending it via email to his nominated email address ([email protected]). The material was also purportedly sent to Mr Deniz Yildirim, who was the legal representative from the law firm representing Mr Duus, although subsequently it was established that the email address used for Mr Yildirim on that occasion was incorrect. No material was filed or served by or on behalf of Mr Duus by noon on 10 January 2019.

[5] On 15 January 2019, the Commission telephoned Mr Duus’ legal representative to enquire about his outstanding material. Mr Duus’ legal representative advised the Commission that they had not been able to obtain instructions from him and further, they had not received material from Byford Equipment, whose material were due on 20 December 2018. It is, however, to be noted that the material had been sent to the correct nominated email address of Mr Duus, and this appeared to be an email address of the law firm representing him. Following the telephone call, the Commission forwarded Byford Equipment’s material to Mr Duus’ legal representative.

[6] Also on 15 January 2019, the Commission sent an email to Byford Equipment, and carbon copied Mr Duus’ legal representative, advising that the matter would be listed for a non-compliance hearing if the Commission did not receive either Mr Duus’ material or a request for an extension to file his material.

[7] On 16 January 2019, the Commission attempted to telephone Mr Duus’ legal representative but was advised that he was unavailable. Following this, the Commission emailed three individuals from the law firm representing Mr Duus to enquire about the outstanding material and warned that if no contact was made by 4:00pm that day, the matter would be listed for a non-compliance hearing. The correspondence also requested Mr Duus’ personal contact details, which had not been provided on his application.

[8] In response to the Commission’s email, Mr Duus’ legal representative emailed correspondence dated 16 January 2019 advising that the material would be filed by 18 January 2019 and providing Mr Duus’ contact telephone number. Shortly thereafter, further email correspondence was received from Mr Duus’ legal representative requesting an extension for the filing of material to 18 January 2019.

[9] On 18 January 2019 correspondence was sent to Mr Duus’ legal representative advising that the request for an extension to file his material had not been granted. The materials of Mr Duus remained due.

[10] On 21 January 2019, the Commission attempted to telephone Mr Duus on the telephone contact number provided by his legal representative. Mr Duus was unable to be reached and a voicemail message was left advising that his material was overdue and that his legal representative was awaiting his instructions. The voicemail message further warned that the matter would be listed for a non-compliance hearing if the Commission did not receive contact from him by 4:00pm the same day.

[11] Later on 21 January 2019, the Commission telephoned Mr Duus’ legal representative who advised that their last contact with Mr Duus was on 17 January 2019, at which point he had indicated he wished to proceed with his application and would contact them at a later time to provide further instructions. Mr Duus’ legal representative advised the Commission during the telephone conversation that they would withdraw if they did not receive contact from him.

[12] However, on 21 January 2019 Mr Duus returned the Commission’s telephone call and advised that he had not heard from his legal representative since the conciliation on 20 November 2018. He further advised that each time he contacted his legal representative about his matter, he was told that they were unaware of what was happening. According to the Commission’s records, Mr Duus was told that his material was overdue and that he should make contact with his legal representative immediately.

[13] On the afternoon of 22 January 2019, the Commission sent the parties a Notice of Listing scheduling the matter for a non-compliance hearing on 25 January 2019.

[14] On 24 January 2019, the Commission attempted to telephone both Mr Duus and his legal representative to confirm their contact telephone numbers for the non-compliance hearing scheduled the next day. Neither Mr Duus nor his legal representative were able to be contacted, so voicemail messages were left advising that the non-compliance hearing was proceeding the next morning and seeking a return call.

[15] Later on 24 January 2019, Mr Duus’ legal representatives filed a Form F54 – Notice of representative ceasing to act, advising they had not been able to obtain his instructions.

[16] The non-compliance hearing proceeded before Commissioner Wilson on 25 January 2019. Mr Duus could not be contacted. Byford Equipment made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Duus’ failure to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Byford Equipment’s oral application.

[17] Following the non-compliance hearing, correspondence was sent to Mr Duus via express post advising him of Byford Equipment’s s.399A application. Mr Duus was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 1 February 2019. This correspondence also stated that if the Commission did not receive a response, Mr Duus’ application for relief from unfair dismissal would likely be dismissed. A review of the Australia Post tracking ID indicated that the correspondence was delivered to the nominated postal address of Mr Duus on 31 January 2019.

[18] On 5 February 2019, a Notice of Listing was sent to the parties cancelling the Jurisdiction and Arbitration Conference/Hearing scheduled on 12-15 February 2019.

[19] To date, Mr Duus has not filed any material with the Commission.

[20] 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.

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

[22] As Mr Duus did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[23] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than filing his application and attending the conciliation, Mr Duus has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing, which took place over three weeks ago. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Duus’ application.

[24] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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