Shaun Russell v Direct Steel Sales

[2019] FWC 533

[2019] FWC 533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Russell
v
Direct Steel Sales
(U2018/11541)

DEPUTY PRESIDENT CLANCY MELBOURNE, 31 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 9 November 2018, Mr Shaun Russell 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 Russell said his employment had been terminated by Direct Steel Sales (DSS) on 22 October 2018.

[2] The matter was listed for conciliation on 4 December 2018, however it did not resolve.

[3] On 7 December 2018, directions were issued for the filing of material. Mr Russell was directed to file his material by no later than noon on 3 January 2019, however he did not comply with this direction.

[4] On 4 January 2019, the Commission telephoned Mr Russell’s representative in relation to the overdue material. The representative advised they had been having difficulty contacting Mr Russell and this was perhaps because he had secured new employment in a rural area. They indicated they would seek to contact him over the weekend.

[5] On 7 January 2019, Mr Russell’s representative advised they had not been able to contact Mr Russell and that they would make one further attempt which, if unsuccessful, would result in them filing a Notice of Representative Ceasing to Act (Form F54). A short time later, a Form F54 was filed by the representative.

[6] On 8 January 2019, the Commission telephoned Mr Russell, however there was no answer and a voicemail message was left seeking a return call in relation to his overdue material. Email correspondence was then sent to Mr Russell confirming no material had been received. He was requested to contact the Commission to advise when he intended to file his material and it was noted in the absence of a response, the matter would be listed for a non-compliance hearing on 11 January 2019.

[7] On 9 January 2019, a Notice of Listing was sent to the parties confirming the scheduling of a non-compliance hearing on 11 January 2019.

[8] On 10 January 2019, a voicemail message was left for Mr Russell seeking confirmation of his attendance at the non-compliance hearing and his best contact phone number for the purpose of the hearing.

[9] The non-compliance hearing proceeded before Commissioner Wilson on 11 January 2019. Mr Russell could not be contacted. DSS made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Russell’s failure to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted DSS’s oral application. Following the non-compliance hearing, correspondence was sent to Mr Russell via email and express post advising him of DSS’s s.399A application. Mr Russell was directed to file submissions and other documentary material in respect of the s.399A application by 4.00pm on 18 January 2019. This correspondence stated that if the Commission did not receive a response, Mr Russell’s application for relief from unfair dismissal would likely be dismissed. A review of the Australia Post tracking ID indicates the letter was delivered on 15 January 2019.

[10] To date, Mr Russell has not filed any material with the Commission.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Russell has failed to respond to numerous attempts made by the Commission to contact him. Mr Russell has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Russell’s application.

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

DEPUTY PRESIDENT

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