Shannon Holliday v Cheapa Auto Spares Oxenford Pty Ltd

[2017] FWC 2883

[2017] FWC 2883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shannon Holliday
v
Cheapa Auto Spares Oxenford Pty Ltd
(U2017/2491)

COMMISSIONER SIMPSON BRISBANE, 25 MAY 2017

Application for an unfair dismissal remedy.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Shannon Holliday who alleges that the termination of his employment with Cheapa Auto Spares Oxenford Pty Ltd (Cheapa Auto) was unfair. The application was lodged in Brisbane on 7 March 2017.

[2] The matter was listed for Conciliation, by Telephone before a Fair Work Commission Conciliator at 11:15am on Monday 10 April 2017.

[3] On 5 April 2017, Mr Holliday sent an email to the Fair Work Commission Unfair Dismissal Team (UDT) advising that he had started a new job and could only be contacted during his lunch break, as he was not allowed mobile phones at his workplace. Mr Holliday did not seek an adjournment of the Conciliation, nor did he provide an alternative time where he would be available.

[4] On 10 April 2017 several attempts were made by the Conciliator to contact Mr Holliday on the mobile phone number he provided to the Commission. However, the phone was answered on two occasions by someone named “Jason” who said he did not know Mr Holliday. A voicemail message was also left. The Conciliator then sent an email to Mr Holliday requesting an urgent response.

[5] Attempts were also made to contact Manny Palma from the Gold Coast Community Legal Centre who was listed as Mr Holliday’s representative on his Form F2 application, though the Conciliator was unable to speak with him. Mr Palma later contacted the Commission to advise he was not in fact Mr Holliday’s representative despite the Form F2.

[6] At 8:53pm on 10 April, Mr Holliday sent an email to the Conciliator advising that he cannot have his mobile phone on while working. Mr Holliday advised his working hours were between 7:30am and 4:30pm and that he could be reached after 4:30pm. Mr Holliday also confirmed his mobile number and advised he did not know who “Jason” was and that his phone was locked away in his locker.

[7] On Friday 21 April 2017 the UDT sent an email to Mr Holliday and advised him that Fair Work Commission Conciliations are held three times per day being 9:15am, 11:15am every weekday, and also at 2:15pm every weekday except Friday. The UDT asked Mr Holliday to advise the Commission of any date during the month of May that he would be able to make one of these times.

[8] As at 28 April 2017, no response had been received from Mr Holliday regarding a further Conciliation attempt, and the matter was therefore referred to my Chambers. The matter was listed for a Telephone Mention at 4:30pm on Wednesday 10 May 2017.

[9] On Monday 8 May 2017, Mr David Crothers from Cheapa Auto sent an email to Chambers advising that as the owner of a small business, he would find it difficult to attend a Telephone Mention at 4:30pm. He advised the Commission that most of his staff have gone home by that time, and that therefore he needed to be available to answer telephone calls and run the business. Mr Crothers advised he would be available to attend a Telephone Mention on any day before 1:00pm.

[10] On 9 May 2017 my Chambers sent an email to Mr Holliday advising him that the Telephone Mention on 10 May would be adjourned, given Cheap Auto is a small business with only 3 employees and could not attend at the time listed. Given Mr Holliday had already advised the Commission he was available to be contacted on his lunch break, the Commission invited Mr Holliday to provide a time before 1:00pm that was suitable on any day during the next week.

[11] At 8:58pm on 9 May 2017, Mr Holliday sent an email to Chambers advising that he has started a new job and that he was unable to take calls during working hours. He advised that he finished at 4:30pm most days, but was sometimes required to work back after that time. Mr Holliday said he was:

“sorry for the inconveniences but i (sic) have to put my current work responsibility’s (sic) first.” 1

[12] On Wednesday 10 May 2017, my Chambers sent an email to Mr Holliday advising him that as he was the Applicant in this matter, it was expected that he make time available to pursue his application before the Commission. Mr Holliday was advised that I was willing to accommodate any time during the next two weeks that was before 1:00pm. Mr Holliday was advised that the Mention would be listed by Telephone, and would take approximately half an hour. Mr Holliday was warned that if he was unable to provide a time where he was available during that window, that I must consider whether to dismiss his application for want of prosecution.

[13] On 14 May 2017 Mr Holliday sent an email to chambers:

“Hi

l am forwarding this to the Ombudsman, as l have stated we are not allowed to carry phones with us during working hours, but you still insist on taking the other party (sic) side in having a (sic) early phone conference in there (sic) favour not mine, l feel in (sic) being manipulated into breaking work requirements

What they done was not fair, after being there for 2 and half years, to be sacked on the spot, l have previously advised you off (sic) all the circumstance in relations to Cheapa Auto Spares staffing numbers and operations, l feel l’m not getting a fair go, and my case is not being correctly handled

Shannon Holliday” 2

[14] On 15 May 2017 my Chambers sent a further email to Mr Holliday again advising him that as the Applicant in this matter, the onus rests on him to make time to prosecute his claim. Mr Holliday was advised that I was prepared to extend the time to three weeks for him to make arrangements with his current employer, to make time to schedule a 30 minute Telephone Mention. Mr Holliday was directed to advise Chambers of a time he could make himself available before 1:00pm between 16 May and 31 May 2017. Mr Holliday was again warned that if he did not provide Chambers with a time where he could be available during this window, by 5:00pm Monday 22 May 2017, that I would give consideration to dismissing his application.

[15] As at 25 May 2017, no response has been received from Mr Holliday.

Consideration

[16] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[17] The Full Bench of Fair Work Commission in Sayer v Melsteel Pty Ltd 3considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to the Fair Work Commission to consider exercising the power of the Tribunal under section 587(1). Sayer further considers that it would not be inconsistent with s. 587(1) to dismiss the application without examining the merits.

[18] It is clear that Mr Holliday has been given a reasonable opportunity by the Commission to make himself available to prosecute his claim. Mr Holliday has advised the Commission that he is available to be reached during his lunch breaks, though has failed to provide any time during his lunch break over a three week period where he can make himself available. I see no reason why Mr Holliday cannot make arrangements to make himself available to attend a 30 minute Mention by Telephone.

[19] I do not consider Mr Holliday’s circumstances are such that it is necessary or appropriate to list the matter outside of regular business hours.

[20] I adopt the approach of the Full Bench in Sayer in this matter. The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above. Accordingly the matter is dismissed.

COMMISSIONER

 1   Email received from the Applicant dated 9 May 2017.

 2   Email received from the Applicant dated 14 May 2017.

 3   [2011] FWAFB 7498.

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