Shane Harris v Woolworths Limited Pty Ltd T/A Woolworths Brisbane Regional Distribution Centre

[2017] FWC 4016

[2017] FWC 4016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Harris
v
Woolworths Limited Pty Ltd T/A Woolworths Brisbane Regional Distribution Centre
(U2017/5468)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 23 May 2017, Mr Shane Harris made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Harris stated he was dismissed by Woolworths Limited Pty Ltd T/A Woolworths Brisbane Regional Distribution Centre (Woolworths) on 2 May 2017.

[2] The matter was listed for conciliation on 13 June 2017, however it could not proceed as Mr Harris could not be contacted. The conciliator made contact with Mr Harris’ then representative Mr D Gaffy of the Shop, Distributive & Allied Employees’ Association (SDA), who advised he had not heard from Mr Harris for a number of days. Consequently, email correspondence was sent by the conciliator advising the parties that if they wished for the matter to proceed via further conciliation they were to contact the Fair Work Commission (Commission) within two days or the matter would be referred for arbitration.

[3] On 14 June 2017, Ms S Purton of the SDA emailed the conciliator and requested an additional 7 days in which to seek instructions from Mr Harris regarding the matter. On the same day, Woolworths also sent correspondence to the conciliator requesting that conciliation be relisted.

[4] On 20 June 2017, the conciliator spoke with Ms Purton who stated she had not been able to contact Mr Harris and foreshadowed that if she did not hear from him by the following day the SDA would cease to act as his representative.

[5] On 22 June 2017, a Form F54 – Notice of representative ceasing to act was received from Ms Purton. Later that day, the conciliator emailed Mr Harris and requested that he provide advice as to how he wished to proceed by close of business on 26 June 2017.

[6] As no response was received from Mr Harris, on 27 June 2017 the conciliator contacted Woolworths to confirm its preferences for arbitration. Consequently, directions were issued and the matter was listed for hearing. Mr Harris was directed to file an outline of submissions, witness statements and other documentary material by noon on Monday, 17 July 2017.

[7] On 14 July 2017, the Commission sent a Short Message Service (SMS) reminder to Mr Harris, advising that his submissions were due to be filed on 17 July 2017.

[8] On 17 July 2017, the Commission attempted to telephone Mr Harris, however a voice message was not able to be left. On 18 July 2017, email correspondence was sent to Mr Harris noting his submissions were overdue and advising that if no contact was received from him, the matter would be listed for a non compliance hearing.

[9] On 20 July 2017, a voicemail message was left for Mr Harris advising the matter was listed for non compliance hearing the following morning. A further attempt by the Commission to telephone Mr Harris was made later that day and another voice message was left requesting that he urgently return the call.

[10] Mr Harris did not attend the non compliance hearing. Woolworths made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Harris had failed to comply with a direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Woolworth’s oral application. Correspondence was then sent to Mr Harris informing him of Woolworth’s s.399A application. Mr Harris was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday, 28 July 2017. This correspondence was sent to Mr Harris via email and post.

[11] To date, Mr Harris has not filed any material with the Commission.

[12] 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.

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

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Harris has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, Mr Harris has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Harris’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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