Shane Leslie Eaton v Birkgrove Pty Ltd T/A Dobinsons Springs and Suspension

[2018] FWC 1393

[2018] FWC 1393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Leslie Eaton
v
Birkgrove Pty Ltd T/A Dobinsons Springs and Suspension
(U2017/12691)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 MARCH 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 28 November 2017, Mr Shane Leslie Eaton 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). Mr Eaton said that his employment had been terminated by Birkgrove Pty Ltd T/A Dobinsons Springs and Suspension (Dobinsons) on 7 November 2017.

[2] The matter was to be subject of conciliation on 18 December 2017, however the conciliation could not take place because Mr Eaton was not contactable at the scheduled time. Mr Eaton did not respond to the follow up email sent by the conciliator and consequently, the matter was referred for arbitration before a Member of the Commission.

[3] On 28 December 2017, directions were issued by the Commission. Mr Eaton was directed to file his submissions in support of his application by 22 January 2018 and Dobinsons were directed to file their submissions in reply by 12 February 2018. Mr Eaton failed to file any material.

[4] On 23 January 2018, the Commission attempted to contact Mr Eaton regarding his failure file submissions. The Commission contacted Mr Eaton by telephone, however he did not answer and he did not return the Commission’s call. On the same day an email was sent to Mr Eaton stating that his submissions were now overdue and advising that he may request an extension of time to file submissions. This email stated that if the Commission did not receive a response, the matter may be listed for a non-compliance hearing.

[5] On 24 January 2018, further attempts were made to contact Mr Eaton by telephone to discuss his failure to file submissions, however he did not answer the call. A voicemail message was left requesting that Mr Eaton please return the Commission’s call, however he failed to do so. A further email was sent to Mr Eaton stating that submissions were overdue, advising that he may request an extension of time to file his submissions and if he failed to contact the Commission by noon the following day, the matter would be listed for a non-compliance hearing on 30 January 2018.

[6] On 29 January 2018, an email was sent to the parties confirming a non-compliance hearing would be held on 30 January 2018. The Commission attempted to contact Mr Eaton by telephone to confirm the details of the hearing, however he did not answer. A voicemail message was left advising him of the details of the non-compliance hearing and asking him to return the Commission’s call, however he did not return the call.

[7] On 30 January 2018, the matter was subject of a non-compliance hearing by telephone before Commissioner Bissett. Mr Eaton attended the hearing and sought a one month adjournment of the matter, stating that he had been ill for the previous month. Mr Eaton was instructed that he must put his request in writing and include: why he is seeking a one month adjournment, with medical evidence attached, and further, to provide the particulars as to why he did not comply with the directions issued. He was instructed that he must submit his request by 2 February 2018 and that Dobinsons would be given an opportunity to respond to his request by 7 February 2018. The parties were advised that following this, a decision would be made by the Commission and directions would be reissued with amendment if necessary.

[8] On 2 February 2018, an email was received from Mr Eaton attaching a medical certificate dated 31 January 2018. It stated:

“Mr Shane Eaton has a medical condition and attended today, It appears that he has been unwell for the past 2 months. I understand there is a requirement for him to attend mediation. I believe he is currently unfit to attend mediation at this stage.”

[9] The medical certificate suggests that Mr Eaton had not sought medical advice or treatment prior to 31 January 2018. That is to say, it suggests he had not sought medical advice or treatment during the period he was required to prepare his material or before the non-compliance hearing on 30 January 2018. Further, the medical certificate gave no indication as to the nature of Mr Eaton’s incapacity or how it prevented Mr Eaton from complying with directions, nor did it address when he might be able to participate in the Commission proceedings. The medical certificate was unhelpful and not directed at key issues that had arisen in relation to the progress of the matter. Presumably, Mr Eaton relied on the medical certificate for his explanation as to his non-compliance with directions and in support of his adjournment request.

[10] On 5 February 2018, Dobinsons provided a reply to Mr Eaton’s medical certificate. Dobinsons stated that other than lodging the application, Mr Eaton had made no attempt to follow the required steps of the unfair dismissal process and has not made any attempt to respond to the Commission’s correspondence, other than to attend the Non-Compliance Hearing on 30 January 2018. Dobinsons submitted that Mr Eaton’s application was an attempt to waste the time and resources of both the Commission and the company. In conclusion, Dobinsons requested that Mr Eaton’s application be dismissed.

[11] On 14 February 2018 and 15 February 2018, the Commission attempted to contact Mr Eaton by telephone numerous times to advise that the matter would be listed for a Mention hearing to determine how the matter would proceed. A voice messages were left for Mr Eaton asking him to return the Commission’s call. He did not answer nor did he return the Commission’s call.

[12] On 14 February 2018, the Commission also sent two emails confirming the date and time of the Mention hearing and requested that the parties confirm their availability and preferred contact details. It was indicated in the emails sent that I wanted to determine how to proceed with Mr Eaton’s application. A copy of one of these emails was also sent to Mr Eaton via express post and was confirmed to have been delivered to Mr Eaton on 15 February 2018.

[13] On 16 February 2018, I conducted the Mention hearing by telephone. Despite attempts to contact him, Mr Eaton failed to attend. At the Mention hearing, Dobinsons made an oral application under section 399A of the Act requesting that the matter be dismissed due to the failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Dobinsons’ oral application.

[14] Correspondence was subsequently sent to Mr Eaton by email and express post informing him that an application under section 399A had been made by Dobinsons. Mr Eaton was directed to file and serve any submissions providing reasons as to why the Commission should not dismiss his application by 23 February 2018. The letter also stated that if Mr Eaton failed to respond by 23 February 2018, his application for relief from unfair dismissal would be dismissed. The letter having been express posted, was confirmed to have been delivered to Mr Eaton on 19 February 2018.

[15] To date, Mr Eaton has not filed any material with the Commission.

[16] 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.

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

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

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Eaton has failed to comply with the Commission’s directions on two occasions and has failed to respond to the many attempts by the Commission to contact him, with the exception of his attendance at the non-compliance hearing. He failed to attend the Mention hearing conducted by me and did not respond to the attempts to contact him before or after. Significantly, he has now failed to respond to the s.399A application made by Dobinsons, despite being advised that if he failed to do so, his application would be dismissed.

[20] Mr Eaton had the opportunity to engage with the Commission about the conduct of his unfair dismissal application. His circumstances may have been able to be accommodated. However, his failure to engage and respond has featured throughout the conduct of this matter. Mr Eaton has failed to comply with multiple Directions and did not provide any explanation for his failure to attend the Mention hearing before me. Reasonable accommodation has been afforded to Mr Eaton. Regrettably, he has not engaged with consistency or eventually, at all. In these circumstances, I will exercise my discretion under s.399A(1)(a) and (b) and dismiss Mr Eaton’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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