Stephen Harrison v Wilson Security Pty Ltd T/A Wilson Security

[2016] FWC 1225

[2016] FWC 1225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Harrison
v
Wilson Security Pty Ltd T/A Wilson Security
(U2015/13653)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 MARCH 2016

Application for relief from unfair dismissal.

[1] On 15 October 2015, Mr Stephen Harrison made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Harrison’s employment had been terminated by Wilson Security on 25 September 2015.

[2] The matter was listed for conciliation on 17 November 2015, 26 November 2015 and 2 December 2015 but all dates were cancelled due to the unavailability of the parties.

[3] The matter was the subject of conciliation on 10 December 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[4] On 22 December 2015, Mr Harrison was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 11 January 2016.

[5] On 28 December 2015, Mr Harrison emailed the Commission requesting an extension to 2 February 2016 to file his documents as his representative was unavailable.

[6] On 5 January 2016, Mr Harrison was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 22 January 2016.

[7] On 22 January 2016, Mr Harrison emailed the Commission advising:

“I am currently in negotiations with Wilsons regarding settlement & Anne Palmer is currently unavailable. I would like to request an extension until the 12th of Feb to submit my submissions & witness statements in the hope of solving this matter before a Conference/Hearing.”

[8] On 22 January 2016, Mr Harrison was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 29 January 2016.

[9] On 24 January 2016, Mr Harrison emailed the Commission:

“I wish to request the same time & date for both parties for submissions that has been benefited to Wilsons.”

[10] On 25 January 2016, Wilson Security emailed the Commission:

“Wilson Security totally rejects the assertions made in the request below from Mr Harrison’s Representative on Friday, 22 January 2016 3:16 PM. The Company can demonstrate that Mr Harrison’s representative was advised in a timely manner, on several occasions, that there will be no settlement. We can also demonstrate that being overseas from Wednesday 20 to Friday 22 January 2016 did not impact at all upon providing a timely response. Mr Harrison also received your Directions on 22 December 2015.”

[11] On 25 January 2016, the Commission emailed Mr Harrison the directions which were attached to the notice of listing, previously sent to him on 22 January 2016. Mr Harrison was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 29 January 2016.

[12] On 25 January 2016, Mr Harrison emailed the Commission:

“Once again I request the same time & date that is being benefited to Wilsons for both parties on submissions. Wilsons are being benefited 3-weeks longer, why?”

[13] On 27 January 2016, Mr Harrison emailed the Commission:

“If my requests and questions are to be ignored you may prefer to answer to the Ombudsman and media. I will not be discriminated against by you granting Wilsons 3 weeks longer to submit submissions. That is clearly a disadvantage to me, both parties should submit on same time & date.”

[14] On 29 January 2016, the Commission emailed Mr Harrison:

“I have proposed your request to the Panel Head of Unfair Dismissal, Deputy President Gooley.
In all unfair dismissal cases before the Commission, where the Applicant initiates the application, they are required to file their submissions/ witness statements in support of their application first. The Respondent is then given three weeks to respond to the material you provided. At the hearing, parties will be given an opportunity to respond or and cross examine witnesses.
If this process is a concern, a telephone mention can be arranged with a member of the Commission.”

[15] On 2 February 2016, Wilson Security emailed the Commission:

“We refer to the above matter whereby we have not received any notification from the claimant complying with the Directions below to provide submissions by 5pm on 29 January 2016. We therefore request this matter be immediately dismissed as a result. Thank you for your consideration.”

[16] Mr Harrison did not comply with the direction to file material by 29 January 2016 and the matter was listed for a non compliance hearing before Commissioner Bissett on 5 February 2016.

[17] On 3 February 2016, Mr Harrison telephoned the Commission to advise that he could not attend the non compliance hearing due to work commitments. He also emailed the Commission on 4 February 2016 advising same.

[18] At the non compliance hearing on 5 February 2016, Wilson Security made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Harrison had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Wilson Security’s oral application.

[19] On 5 February 2016, Mr Harrison was sent correspondence informing him of Wilson Security’s section 399A application. Mr Harrison was directed to file submissions and other documentary material in respect of Wilson Security’s application by close of business, on 12 February 2016. Mr Harrison was advised that if he failed to comply with this direction, his application would be dismissed.

[20] On 11 February 2016, Mr Harrison emailed the Commission:

“Reason was given in email on 4th February as to why I would not be attending hearing. Why was this direction not adhered to?”

[21] On 11 February 2016, the Commission telephoned Mr Harrison twice and left messages on his voicemail to contact the Commission.

[22] On 12 February 2016, Mr Harrison emailed my chambers:

“Due to Fair Works unfair procedures, advantages shown to Employer & failures responding to emails I will be seeking avenues elsewhere for my claim.”

[23] Mr Harrison has not filed any other material with the Commission.

[24] 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.

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

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

[27] As Mr Harrison has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[28] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Harrison was provided with an answer to his question about procedure. He did not request a mention or when advising the Commission of his availability for the non compliance hearing propose a time when he would be available. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Harrison’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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