Steven Hayles v Zezt Pty Ltd T/A Zezt

[2018] FWC 26

[2018] FWC 26

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Hayles
v
Zezt Pty Ltd T/A Zezt
(U2017/10452)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 JANUARY 2018

Application for an unfair dismissal remedy.

[1] On 26 September 2017, Mr Hayles made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Hayles’ employment had been terminated by Zezt Pty Ltd on 5 September 2017.

[2] The matter was the subject of conciliation on 23 October 2017 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Hayles was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 30 November 2017.

[4] On 29 November 2017, a SMS message was sent to Mr Hayles:

“would like to remind you that written submissions are due to be filed this coming Thursday 30 November 2017.

If you have any questions regarding your matter please call 1800 269 491 and ask for your case manager …”

[5] On 30 November 2017, the Commission telephoned Mr Hayles and a voicemail message was left explaining that his submissions were due and that if he required an extension to file he need to request same in writing or to call the Commission.

[6] On 1 December 2017, the Commission emailed Mr Hayles:

“I refer to the above matter and the Notice of Listing issued to you on 10 November 2017.

This matter is listed for jurisdiction conference/hearing on 8 December 2017 via telephone.

The Notice of Listing contained directions for you to file an outline of argument: objections, statement(s) of evidence and document list by no later than noon on Thursday, 30 November 2017.

To date nothing has been received from you by the Fair Work Commission.

If you wish to proceed with your application, you are required to request an extension to file in writing as soon as possible, or in the alternative to file your submissions. Please note, submissions filed outside of the compliance period where no extension has been requested or accommodated will be an outstanding issue for the Presiding Member.

If we do not hear from you, your matter will be listed for a Non-Compliance Hearing on Friday, 8 December 2017.”

[7] On 4 December 2017, Zezt emailed the Commission:

“I note that this matter is listed for telephone conference this Friday at 2 pm.

Please note the Respondent complied with the FWC Directions and the Applicant was required to lodge a response by noon on Thursday 30 November but has failed to do so.

The Applicant was represented but following initial conciliation, that representation was withdrawn.

I have personally attempted to phone and email the Applicant on the numbers in the F2 on a number of occasions without success and I am of the view that the Applicant is pursuing a frivolous and vexatious claim with the aim of causing inconvenience and cost.

Given the Applicant has not complied with the FWC Directions nor communicated in way whatsoever I seek that the matter be dismissed prior to the hearing this Friday.”

[8] On 4 December 2017, my associate called Mr Hayles but a message could not be left on voicemail.

[9] On 4 December 2017, my chambers sent Mr Hayles an email and SMS message:

“Dear Mr Hayles,

This matter has been allocated to Deputy President Gooley for the telephone hearing on Friday 8 December 2017 at 2.00 pm.

I note you have not filed and served your material by 30 November 2017 as per the Directions issued in this matter.

Please note that if you do not file your material, you will need permission to lead evidence at the hearing and if you don’t participate, a decision will be made based on the material before the Commission.”

[10] On 5 December 2017, Zezt emailed chambers:

“The Respondent has regularly attempted to contact the Applicant since his representatives ceased to act for him without success and it will be our submission that the Applicant has deliberately (just as he was uncontactable when he failed to turn up for allocated shifts) ignored my calls and emails and failed to comply with FWC directions with the intention of causing further costs and inconvenience to the Respondent.

The Respondent will rely on the material already put and seek to have this matter dismissed.”

[11] On 8 December 2017, my associate called Mr Hayles but a message could not be left on voicemail.

[12] The matter was listed for a jurisdiction hearing before me on 8 December 2017.

[13] On 8 December 2017, a SMS message was sent to Mr Hayles to contact my chambers as soon as possible.

[14] Mr Hayles did not attend the hearing. Zezt made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Hayles had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Zezt’s oral application.

[15] On 8 December 2018, Mr Hayles was sent correspondence informing him of Zezt’s section 399A application. Mr Hayles was directed to file submissions and other documentary material in respect of Zezt’s application by close of business, on 15 December 2017. Mr Hayles was advised that if he failed to comply with this direction, his application would be dismissed.

[16] Mr Hayles did not file any material with the Commission.

[17] 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.

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

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

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

[21] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Hayles has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Hayles’ application. An order 1 giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1   PR599186.

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