Shane Zander v Snowdon Developments

[2020] FWC 5926

[2020] FWC 5926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Zander
v
Snowdon Developments
(U2020/12566)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 18 September 2020, Mr Shane Zander 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).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Zander said he was notified that his employment had been terminated by Snowdon Developments on 18 August 2020 and that the termination took effect on 1 September 2020.

[3] The matter proceeded to a conciliation on 7 October 2020 but did not settle. The matter was subsequently allocated to me for further case management.

[4] On 12 October 2020, I issued Directions for the filing of material which required Mr Zander to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than 3:00PM on 27 October 2020. Snowdon Developments was also required to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than 3:00PM on 10 November 2020 and Mr Zander was directed to file any reply material by no later than 3:00PM on 17 November 2020. The Directions further listed the matter for an Arbitration Conference/Hearing on 27 November 2020.

[5] The Directions were issued with a covering email on 12 October 2020, which advised that a Telephone Mention was to be held at 8:45AM on 14 October 2020. The email and attached Directions were sent to Mr Zander’s nominated email address. A subsequent Notice of Listing confirming the Telephone Mention details was issued to Mr Zander’s nominated email address.

[6] Mr Zander was unable to be contacted for the Telephone Mention at 8:45AM on 14 October 2020. I therefore determined to relist the Telephone Mention at 8:45AM on 16 October 2020 and an email as well as an amended Notice of Listing was issued to Mr Zander’s nominated email address to this effect.

[7] At the Telephone Mention on 16 October 2020, Mr Zander appeared for himself and Mr Jared Turnley appeared for Snowdon Developments. I explained to the parties my expectations with regard to the programmed timeline and the importance of complying with my Directions. Following the Mention, I caused further correspondence to be sent to the parties directing their attention to ss.386(1) and 392 of the Act as well as the Unfair Dismissals Benchbook for the purposes of assisting them in preparing their cases.

[8] Mr Zander did not file any material by 3:00PM on 27 October 2020, as required by my Directions.

[9] On 30 October 2020, the parties were advised via email that a non-compliance hearing was to be held at 9:00AM on 2 November 2020 due to Mr Zander’s non-compliance with my Directions.

[10] The non-compliance hearing proceeded before me on 2 November 2020. Mr Zander could not be contacted despite two attempted telephone calls where voicemail messages were left on each occasion seeking his return call. Snowdon Developments made an oral application that the matter be dismissed pursuant to s.399A of the Act due to Mr Zander’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[11] Later the same day on 2 November 2020, email correspondence was sent to Mr Zander advising him of Snowdon Developments’ s.399A application. Mr Zander was directed to file submissions and other documentary material in respect of the s.399A application by no later than 3:00PM on 5 November 2020. The correspondence warned that if no response was received by this time, Mr Zander’s unfair dismissal application may be dismissed without further notice.

[12] Mr Zander did not file any material with the Commission by 3:00PM on 5 November 2020.

[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 Zander did not file any material in opposition to the application to dismiss, I will determine the s.399A application made by Snowdon Developments on the papers.

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Zander has failed to actively prosecute his case since filing his Form F2 on 18 September 2020. Following the Telephone Mention before me on 16 October 2020, he was on notice that his material was due by no later than 3:00PM on 27 October 2020 and that his matter would be at risk of being listed for a non-compliance hearing if he did not comply with my Directions. Through the correspondence and Notice of Listing sent on 30 October 2020, Mr Zander was also on notice that there would be a non-compliance hearing on 2 November 2020. Despite the two voicemail messages left seeking his return call on 2 November 2020, and the subsequent correspondence directing him to file a response to the s.399A application, Mr Zander has not contacted the Commission and nor has he provided any explanation to the Commission for either his continued failure to comply with my Directions or his failure to attend the non-compliance hearing. Mr Zander was warned via email after the non-compliance hearing on 2 November 2020 that his unfair dismissal application was at risk of being dismissed and but failed to make contact with the Commission in response.

[17] In all the circumstances, I am persuaded that Mr Zander has unreasonably failed to comply with my Directions issued on 12 October 2020 and has unreasonably failed to attend the non-compliance hearing on 2 November 2020 and I should therefore exercise my discretion under s.399A and dismiss his unfair dismissal application. This ends his unfair dismissal application.

[18] An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

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