Stephen Daniell v The Bagel Boys Pty

[2018] FWC 4534

[2018] FWC 4534

The attached document replaces the document previously issued with the above code on 2 August 2018.

Correction to last paragraph number

Associate to Commissioner Bissett

Dated 3 August 2018

[2018] FWC 4534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Daniell
v
The Bagel Boys Pty
(U2018/4498)

COMMISSIONER BISSETT DARWIN, 2 AUGUST 2018

Application for an unfair dismissal remedy.

[1] On 1 May 2018, Mr Stephen Daniell 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 Daniell said he was notified of his dismissal by The Bagel Boys Pty (Bagel Boys) on 20 April 2018, and that it took effect on the same day.

[2] The matter was listed for conciliation on 1 June 2018 but was later cancelled by the Commission due to operational reasons. A Notice of Listing was issued to the parties on the same day to confirm the rescheduled conciliation details for 19 June 2018. This was followed by a SMS text message sent to the parties on 18 June 2018 reminding them of the conciliation scheduled for the following day.

[3] Despite two attempts to telephone Mr Daniell on 19 June 2018, the conciliation could not proceed as he could not be contacted. This was followed by correspondence emailed to the parties advising that if no request for a further conciliation was received within the next two days, the matter would be referred for hearing.

[4] On 22 June 2018, the Commission sent an email to the parties to advise that the matter would be referred for hearing.

[5] Later the same day, directions were issued to the parties. Mr Daniell was directed to file his material by no later than noon on 16 July 2018, and Bagel Boys was directed to file its reply material by no later than noon on 6 August 2018.

[6] On 26 June 2018, the Commission attempted to telephone Mr Daniell to discuss how he wished to proceed with his matter. This was unsuccessful, and a voicemail was left requesting a return call.

[7] On 27 June 2018, a Notice of Listing was sent to the parties listing the matter for an Arbitration Conference/Hearing for 29-31 August 2018. The Notice of Listing also contained the same directions issued to the parties on 22 June 2018.

[8] On 16 and 17 July 2018, the Commission attempted to telephone Mr Daniell in relation to his overdue material. As Mr Daniell could not be contacted, voicemails were left requesting a return call on both occasions.

[9] On 17 July 2018, Bagel Boys made an application pursuant to s.399A of the Act to dismiss Mr Daniell’s application due to his failure to comply with the direction of the Commission.

[10] On 18 July 2018, correspondence was sent to Mr Daniell, via email, advising him of Bagel Boys’ s.399A application. Mr Daniell was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by close of business on 25 July 2018.

[11] To date, Mr Daniell has not filed any material with the Commission.

[12] 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.’

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

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

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

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

COMMISSIONER

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