Simon Hill v Serendipity (WA) Pty Ltd

[2019] FWC 6154

[2019] FWC 6154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Simon Hill
v
Serendipity (WA) Pty Ltd
(U2019/7492)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 3 SEPTEMBER 2019

Application for an unfair dismissal remedy – respondent’s section 399A application to dismiss – applicant’s non-compliance with directions and non-attendance at telephone hearings – application dismissed

[1] On 8 July 2019, Mr Simon Hill (the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal by Serendipity (WA) Pty Ltd (Serendipity, the Respondent or the employer). Mr Hill’s form F2 unfair dismissal application (the application) states that he commenced his employment with the Respondent on 20 August 2018 and was unfairly dismissed on 13 June 2019. The application also advises that it is being made within 21 calendar days of the dismissal taking effect.

[2] On 15 July 2019, the Respondent filed a form F3 employer response (the employer response) which advises that Mr Hill had commenced his employment on 20 August 2018 and that there was no dismissal as Mr Hill was said to have resigned. The employer response identified two jurisdictional objections – that the application was lodged out of time and that the applicant was not dismissed.

[3] The application was listed for a telephone conciliation before a Commission-appointed conciliator at 12.45pm (ACST) on 7 August 2019. An SMS reminder was sent to the parties on 6 August 2019.

[4] On 7 August 2019, the conciliation did not take place. The Commission’s file records a letter dated 7 August 2019 being emailed to the parties. The letter states “I called the number you listed as your contact number four times but there was no answer, I left voice mail messages for you to call me. I have not yet heard from you”. Mr Hill was advised that if he wanted to proceed with a further conciliation, then he would need to email the request to the conciliator within two working days. Mr Hill was also advised that failure to do so would result in the matter being allocated for arbitration before a Member of the Commission. On the same day, the Respondent sent an email to the Commission advising that it wished for the matter to go to “a jurisdictional hearing before another conciliation”.

[5] The conciliator subsequently informed the Respondent that it was required to file a form F4 objection to unfair dismissal application. On 7 August 2019, the Respondent filed a form F4 advising that the matter was lodged out of time.

[6] On 8 August 2019, the application was allocated to me for determination. On 13 August 2019, the matter was listed for an extension of time hearing at 11.00am (ACST) on Friday 30 August 2019. As per my usual practice, the parties were provided with an Unfair Dismissal Guide, an extract from the Unfair Dismissal Benchbook, a copy of the unfair dismissal application and a blank form F50 notice of discontinuance. These documents were accompanied by a letter to the parties which directed Mr Hill to provide to the Commission and to the Respondent by close of business (5.00pm ACST) on Wednesday 21 August 2019 a witness statement containing material relevant to the extension of time issue, submissions and a copy of any document upon which he intended to rely on. The Respondent was advised that whilst it was not required to provide a statement in advance of the hearing, if it wished to do so it should provide it to the Commission and to Mr Hill by close of business (5.00pm ACST) on Wednesday 28 August 2019. On 19 August 2019, a copy of these documents were sent by express post to Mr Hill’s postal address.

[7] On 21 August 2019, my Chambers sent a reminder to Mr Hill that his submissions were due by 5.00pm (ACST) on that day. On 22 August 2019, a further email was sent to Mr Hill advising that his material was now considered as overdue and requiring him to file his material as a matter of urgency.

[8] On Friday 23 August 2019, my Chambers sent an email to the parties confirming a telephone conversation between my Chambers and Mr Hill. The email advised that Mr Hill had confirmed that he had received the letter and accompanying documents. Mr Hill had been advised to take the time to read the documents including the letter which stated that his material was due on 21 August 2019. I agreed to extend the time for Mr Hill to file his material to close of business (5.00pm ACST) on Monday 26 August 2019. Mr Hill replied via email on 23 August 2019 and stated “Thank you for your call earlier. I will speak with you Monday morning regarding this.”

[9] At 1.25pm on Monday 26 August 2019, the Commission’s file records a telephone conversation with Mr Hill. Mr Hill advised that he was unlikely to file any material and that he may wish to discontinue his application. My Associate advised Mr Hill that he would need to complete a form F50 notice of discontinuance if this was so. It is recorded that Mr Hill advised he was between homes with no internet access and that he would attempt to get to a library by 5.00pm on the same day to complete the form F50 notice of discontinuance.

[10] Having received no correspondence, my Chambers telephoned Mr Hill on 27 August 2019. Mr Hill advised that he was on his way to a library to discontinue his application. My Associate advised that my Chambers would confirm the conversation in an email and would again attach the correct form. The telephone conversation was confirmed via email dated 27 August 2019 and attached the form F50 notice of discontinuance.

[11] On Thursday 29 August 2019, my Chambers emailed the parties to remind them that the matter remained listed for the extension of time hearing on 30 August 2019. A further email was sent later on the same day advising that, as he had not filed materials as directed, should Mr Hill wish to rely on any material or documentary evidence at the hearing, he would first need to seek permission from the Commission. Mr Hill was reminded that should he wish to discontinue his application prior to the hearing, he could complete the form F50 notice of discontinuance or send a reply email to my Chambers clearly stating that he wished to do so.

[12] On 30 August 2019, my Associate attempted to contact Mr Hill on two occasions as he had not dialled into the scheduled telephone hearing. Two voicemail messages were left for Mr Hill advising that the matter was about to proceed in his absence which may result in his application being dismissed and a decision being issued. Mr Hill failed to dial into the telephone hearing. Ms Michelle Edwards appeared on behalf of the Respondent.

[13] I commenced proceedings at 11.12am (ACST) on 30 August 2019. An audio record of the proceedings was made. At the telephone hearing, Ms Edwards made a verbal section 399A application for Mr Hill’s unfair dismissal application to be dismissed. I decided that Mr Hill needed an opportunity to explain his non-appearance and non-compliance with directions and to be informed of the employer’s application before I further dealt with it. The matter was adjourned until 3.30pm (ACST) on 3 September 2019 for a non-compliance telephone hearing. I directed Ms Edwards at the telephone hearing, later confirmed by email which was also sent to Mr Hill, that should she wish to make a section 399A application she would need to do so formally using the correct form and would need to serve it on Mr Hill. In this instance, the Commission would also serve the section 399A application to ensure Mr Hill received the same. Mr Hill was directed to provide a written explanation for his non-participation at the telephone hearing by no later than 5.00pm (ACST) on 2 September 2019.

[14] A copy of the Notice of Listing for the non-compliance telephone hearing on 3 September 2019, an email with directions of the Commission dated 30 August 2019 and the form F1 application (made under section 399A of the FW Act) subsequently received from the Respondent were express posted to Mr Hill on the afternoon of 30 August 2019.

[15] On 2 September 2019 at 11.11am, Mr Hill wrote an email to the Respondent and copied in my Chambers. The email read as follows:

“Good morning to you all,

After consultation by my psychologist, lawyer, Glenn Philip from the department of social services DSS and today tonight the matter will be continued at a higher level due to the questionable acts and poor treatment/ training received from BM’s at APM Elizabeth During my time of employment with this group.  

Please await further contact regarding this matter as time holds no bearing on unethical, immoral acts and treatment by management within or during any term of employment served.

Kind regards

Simon j t hill” 

[16] My Chambers reminded Mr Hill, via reply email, that a written explanation for his non-participation at the telephone hearing on 30 August 2019 was due by 5.00pm (ACST) that day (2 September 2019), both parties were reminded that the matter remained listed for a non-compliance hearing via telephone at 3.30pm (ACST) on 3 September 2019 and that a failure to attend may result in the unfair dismissal application being dismissed.

[17] Mr Hill failed to provide a written explanation on 2 September 2019, as directed. Nor has he subsequently done so.

[18] The non-compliance telephone hearing proceeded at 3.30pm (ACST) on 3 September 2019. Ms Edwards appeared on behalf of the Respondent, no appearance was made by Mr Hill despite my Associate’s unsuccessful attempts to telephone Mr Hill at the scheduled commencement of the telephone hearing. A voicemail message was left requesting Mr Hill to urgently dial in to the telephone hearing, with a failure to do so possibly resulting in his unfair dismissal application being dismissed in his absence. I commenced proceedings at 3.40pm (ACST). An audio recording of the proceedings was made.

[19] At the telephone hearing, Ms Edwards submitted that Mr Hill’s application should be dismissed in light of Mr Hill’s failure to attend hearings and comply with directions. Ms Edwards advised that the Respondent had no independent knowledge of Mr Hill’s current circumstances, and that apart from the email sent by Mr Hill of 2 September 2019 it had no contact from him or a representative acting on his behalf.

[20] Section 399A of the FW 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.

Note 1:       For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2:       The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[21] I am satisfied that Mr Hill has unreasonably failed to attend the extension of time hearing listed on 30 August 2019 and the non-compliance telephone hearing listed on 3 September 2019. Mr Hill has also failed to comply with the directions of the Commission issued on 13 August 2019 in relation to the extension of time issue and the directions issued on 30 August 2019 in relation to Mr Hill’s non-participation at the telephone hearing on 30 August 2019.

[22] Mr Hill has failed to meet the minimum requirements of an Applicant; that is to actively prosecute his claim and respond to reasonable obligations to attend hearings and file materials in support. His failure to do so has put the Commission and the employer to inconvenience. Further, despite being given an opportunity and direction to do so, Mr Hill has not provided an explanation for his non-responsiveness.

[23] I am satisfied that this constitutes unreasonable conduct within the meaning of section 399A of the FW Act.

[24] In these circumstances, I am persuaded that I should exercise my discretion under section 399A(1)(a) and (b) of the FW Act and dismiss Mr Hill’s application. An Order¹ to that effect will be issued in conjunction with the publication of this Decision.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant.

Ms M Edwards on behalf of the Respondent.

Hearing details (by telephone):

2019.

Adelaide;

30 August and 3 September.

Printed by authority of the Commonwealth Government Printer

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