Sonny Carroll v Daws Road Bottle Company

[2014] FWC 4124

[2014] FWC 4124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonny Carroll
v
Daws Road Bottle Company
(U2014/566)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 25 JUNE 2014

Application for relief from unfair dismissal - request to set aside Notice of Discontinuance.

[1] On 25 February 2014 Mr Carroll lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of his employment with the Daws Road Bottle Company. The application was lodged on behalf of Mr Carroll by his, then representative, Mr Kelemen.

[2] The Employer Response to the application identified the employer as AB & SM Rawlings Pty Ltd T/A Daws Road Bottle Company. That response identified the employer as a small business and asserted that the termination of Mr Carroll's employment was consistent with the Small Business Fair Dismissal Code.

[3] The application was listed for conciliation on 11 April 2014. That conciliation conference was cancelled on 10 April 2014 after the Fair Work Commission (FWC) received a Notice of discontinuance signed by Mr Kelemen.

[4] On 27 May 2014 Mr Carroll provided advice to the effect that he sought that the Notice of discontinuance should be set aside so that he could pursue the application. Mr Carroll asserted that on 10 April 2014 an FWC employee had telephoned him and discussed with him the number of warnings given to him, before advising him that there was no point in having the conciliation conference on the following day. Mr Carroll advised that he waited in vain for the conference to occur on 11 April 2014.

[5] Mr Carroll's request for the Notice of discontinuance to be set aside was referred to me. On 20 May 2014 I issued Directions which advised that this matter would be considered at a telephone conference on 12 June 2014. Those Directions required Mr Carroll to participate in the conference and I also issued a summons for Mr Kelemen to participate in this conference.

[6] Mr Carroll, Mr Kelemen and Mr Callus from the respondent participated in this conference. A sound file record of this conference was kept. I advised the parties that, before I considered whether there was a jurisdictional basis upon which the Notice of discontinuance could be set-aside, I sought that the facts of the matter be clarified. In the conference Mr Carroll conceded that the discussion which he asserted occurred on 10 April 2014 with an FWC employee, may in fact have involved an employee of Mr Kelemen. Nevertheless, Mr Carroll maintained his position that he had not authorised the Notice of discontinuance. I requested that the FWC and Mr Carroll be provided with a statutory declaration made out by Mr Kelemen’s employee and relisted the matter for a further telephone conference on 20 June 2014. I advised Mr Carroll that, if, after considering that statutory declaration, he no longer sought to pursue his request to have the matter reopened, advice to this effect should be provided to my office.

[7] On 13 June 2014 I received a statutory declaration made out by a Ms Arkles whom I am advised is an employee of Employee Assist. This stated:

“1. I contacted Sonny Carrol on 10 April 2014 to discuss his unfair dismissal application. During that conversation Mr Carrol instructed me to discontinue his application.

2. I discontinued Mr Carol’s application later that afternoon.

3. I have not heard from Mr Carol whatsoever after this date until notice was received from chambers.”

[8] I received no further advice from Mr Carroll. Mr Carroll did not participate in the conference on 20 June 2014. At this conference I advised that, even before I considered the jurisdiction available to the FWC to set aside a Notice of discontinuance, the absence of any advice from Mr Carroll, and his failure to participate in this conference indicated that his request should be refused Further, my decision in this respect was made on the basis that the information before me did not support Mr Carroll's allegations against the FWC employee, and did not support his contention that he had not agreed that his application should be discontinued. I advised that, absent advice from Mr Carroll which established to my satisfaction, that he was physically unable to attend this conference, or established a reason for his non-attendance, an Order refusing his request to have the Notice of discontinuance set aside would then be issued.

[9] Accordingly, unless Mr Carroll provides to me, satisfactory written advice, supported by documented material, which establishes that he was physically unable to attend this conference, or to provide advice of his non-attendance, by close of business 1 July 2014, an Order refusing his request will be issued.

[10] I note that, in these circumstances I have not found it necessary to consider whether the jurisdiction to set the Notice of discontinuance aside is available to the FWC. It is simply the case that the material before me does not establish a sound basis to consider that proposition in these circumstances.

SENIOR DEPUTY PRESIDENT

Appearances:

June 12

S Carroll on his own behalf.

A Kelemen on behalf of Employee Assist.

G Callus representing the respondent.

June 20

A Kelemen on behalf of Employee Assist.

G Callus representing the respondent.

Hearing (Conference) details:

2014.

Adelaide:

June 12 and 20.

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