Steve Toth v BDH Communications Pty Ltd T/A BDH Communications Pty Ltd

[2018] FWC 1963

[2018] FWC 1963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steve Toth
v
BDH Communications Pty Ltd T/A BDH Communications Pty Ltd
(U2017/13058)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 APRIL 2018

Application for an unfair dismissal remedy - Application dismissed.

[1] On 8 December 2018, Mr Steve Toth 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 Toth said that his employment had been terminated by BDH Communications Pty Ltd (BDH) on 26 November 2017.

[2] On 3 January 2018 BDH filed a Form F53 – Notice of representative commencing to act advising that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) was now acting on behalf of BDH.

[3] The matter was listed for conciliation on 4 January 2018, however the matter did not settle.

[4] On 23 January 2018, BDH filed a Form F4 – Objection to unfair dismissal application in which it raised a jurisdictional objection that BDH were a small business who followed the Small Business Fair Dismissal Code in its termination of Mr Toth.

[5] On 24 January 2018, directions were issued by the Commission. BDH were directed to file submissions in support of its jurisdiction objection by 5 February 2018 and Mr Toth was directed to file submissions in support of his application by 12 February 2018.

[6] On 20 February 2018, the Commission issued amended directions. The amended directions required BDH to file submissions in support of its jurisdiction objection by 20 February 2018 and Mr Toth was directed to file submissions in support of his application by 27 February 2018. These amended directions were sent to both Mr Toth’s nominated email address and his postal address. Mr Toth did not file any material.

[7] On 28 February 2018, the Commission sent an email to Mr Toth stating that his submissions were now overdue. This email requested that Mr Toth contact the Commission to advise when he intended to file his submissions and warned that if the Commission did not receive a response, that the matter would be listed for a non-compliance hearing on 9 March 2018. The Commission did not receive a response to the correspondence.

[8] On 1 March 2018 and 2 March 2018, the Commission sought to contact Mr Toth by telephone regarding his failure to file submissions. On both days a voicemail message was left requesting Mr Toth return the Commission’s call as soon as possible. Mr Toth did not return the calls.

[9] On 2 March 2018, the Commission sent a further email to Mr Toth stating that his submissions were now overdue. This email again requested that Mr Toth contact the Commission to advise when he intended to file his submissions and warned that if the Commission did not receive a response, that the matter would be listed for a non-compliance hearing on 9 March 2018. The Commission did not receive a response from Mr Toth.

[10] On 5 March 2018, the Commission attempted to contact Mr Toth by telephone however he did not answer and nor did he return the Commission’s call.

[11] On 6 March 2018, the Commission left a voicemail message for Mr Toth advising him that the matter would now be listed for a non-compliance hearing on 9 March 2018. The message advised if he failed to attend the non-compliance hearing would proceed in his absence and that at this hearing BDH could make an application to dismiss the matter under s.399A of the Act.

[12] On 8 March 2018, a notice of listing was sent to Mr Toth’s nominated email address and postal address confirming the scheduling of a non-compliance hearing on 9 March 2018.

[13] On 9 March 2018, a non-compliance hearing proceeded before Deputy President Colman. Mr Toth could not be contacted for the hearing. BDH was represented by Mr Clinton Thomas of the CEPU. Mr Thomas made an oral application pursuant to s.399A of the Act that the matter be dismissed due Mr Toth’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted BDH’s oral application.

[14] On 13 March 2018, correspondence was sent to Mr Toth by email and post advising him of BDH’s s.399A application. Mr Toth was directed to file submissions and other documentary material in respect of the s.399A application by close of business 20 March 2018. This correspondence stated that if the Commission did not receive a response, Mr Toth’s application for relief from unfair dismissal would be dismissed.

[15] To date, Mr Toth has not filed any material with the Commission.

[16] 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.

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

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

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Toth has failed to respond to numerous attempts made by the Commission to contact him. Following the conciliation conference, Mr Toth 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 under s.399A and dismiss Mr Toth’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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