Steven Cresswell v Floor Sanding Supplies T/A Floor Sanding Supplies

[2019] FWC 4931

[2019] FWC 4931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Cresswell
v
Floor Sanding Supplies T/A Floor Sanding Supplies
(U2019/4810)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 JULY 2019

Application for an unfair dismissal remedy.

[1] On 27 April 2019, Mr Steven Cresswell 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). In his Form F2 – Unfair Dismissal Application (Form F2), Mr Cresswell said his employment had been terminated by Floor Sanding Supplies T/A Floor Sanding Supplied (FSS) on 10 April 2019.

[2] In its Form F3 – Employer response to application for an unfair dismissal remedy (Form F3) filed on 30 May 2019, it was confirmed that the correct trading name for the Respondent was Floor Sanding Supplies. I am satisfied that this entity is the correct Respondent in this application.

[3] The matter proceeded to conciliation on 4 June 2019 but did not resolve. The matter was then referred for further programming.

[4] On 12 June 2019, a Notice of Listing was sent to the parties scheduling the matter for Arbitration Conference/Hearing on 14 and 15 August 2019. Directions were also issued for the filing of material. Mr Cresswell was directed to file his material by no later than noon on 1 July 2019 and FSS was to file its material by no later than noon on 22 July 2019.

[5] No material was received from Mr Cresswell by noon on 1 July 2019.

[6] On 1 July 2019, the Commission sent correspondence by email to Mr Cresswell to remind him that his material was due earlier that day. Immediately following this, the Commission attempted to call Mr Cresswell on the phone number he provided on his Form F2, but this was unsuccessful so a voice message to text was sent requesting his return call.

[7] On 2 July 2019, another telephone call was made by the Commission to Mr Cresswell via the phone number that he provided for conciliation. Mr Cresswell answered the phone but asked the Commission to call him back at a later time. The Commission advised Mr Cresswell that the call was regarding his overdue materials and that his matter was at risk of being listed for a non-compliance hearing. The Commission further advised Mr Cresswell that emails had been sent to him and he could reply to these emails if he preferred. The Commission records indicate that Mr Cresswell advised he would reply to the emails. Following this, further email correspondence was sent to Mr Cresswell noting that if Mr Cresswell did not contact the Commission by noon on 3 July 2019, the matter would be listed for a non-compliance Hearing.

[8] On 3 July 2019, the Commission attempted to call Mr Cresswell on the phone number he provided for conciliation. A voicemail message was left advising that as the Commission had not received a response from him, the matter will be listed for a non-compliance hearing on 5 July 2019. Mr Cresswell was further advised that he would be contacted on this number and that he was required to answer the Commission’s call on 5 July 2019. The Commission further requested Mr Cresswell’s urgent return call.

[9] Later the same day, a Notice of Listing was sent to the parties, scheduling the matter for a non-compliance hearing on 5 July 2019. The Notice of Listing was sent to Mr Cresswell by email and express post, and a review of the Australia Post tracking ID indicates the Notice of Listing was successfully delivered to Mr Cresswell’s nominated postal address on 4 July 2019.

[10] The non-compliance hearing took place before me on 5 July 2019. Mr Cresswell could not be contacted, despite four attempts to both the phone number nominated on Mr Cresswell’s Form F2 and the phone number he provided for conciliation. FSS made an oral application pursuant to s.399A of the Act, that the matter be dismissed due to Mr Cresswell’s failure to comply with the directions of the Commission requiring him to file material. I waived compliance with the Fair Work Commission Rules 2013 and accepted FSS’s oral application.

[11] Following the non-compliance hearing, correspondence was sent to Mr Cresswell via email and post advising him of FSS’s s.399A application. Mr Cresswell was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4pm on 12 July 2019. The correspondence also noted that if the Commission did not receive a response, Mr Cresswell’s application for relief from unfair dismissal may be dismissed.

[12] To date, Mr Cresswell has not filed any material with the Commission.

[13] 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.

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

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

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application, attending the conciliation and answering one phone call, Mr Cresswell has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the requirements directing him to file material or his failure to attend the non-compliance hearing on 5 July 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Cresswell’s application. This ends his unfair dismissal application.

[17] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR710360>