Steven Turnbull v
[2023] FWC 2953
•10 NOVEMBER 2023
| [2023] FWC 2953 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steven Turnbull
v
THRL Pty Ltd T/A Spicers Hidden Vale
(U2023/7408)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 10 NOVEMBER 2023 |
Application under s.399A – applicant’s failure to comply with directions – no explanation for failure – application dismissed
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by THRL Pty Ltd T/A Spicers Hidden Vale (Respondent) to dismiss an unfair dismissal application brought against it by Mr Steven Turnbull (Applicant).
On 10 August 2023, the Applicant made an application pursuant to s.394 of the Act which named the respondent as Spicers Retreats Hotels & Lodges Pty Ltd. On 11 September 2023, the Respondent filed their Form F3 – Employer Response to an Unfair Dismissal Application which stated that the correct name of the Respondent is THRL Pty Ltd T/A Spicers Hidden Vale. On 27 September 2023, the Commission wrote to the Parties seeking that the Applicant confirm whether he sought to amend his application to reflect the name given by the Respondent.
On 30 September 2023, the Applicant responded that he was initially employed by Spicers Retreats as per his contract and that he had not heard of the company that was indicated on the Form F3. I consider it appropriate to exercise my discretion pursuant to section 602 to amend the application to reflect the name provided by the Respondent.
On 18 October 2023, I issued directions (directions) which required the Applicant to file and serve written submissions in relation to the merits and any witness statements or other material on which the Applicant intended to rely in support of his application for an unfair dismissal remedy by 4:00pm on 1 November 2023. The matter was listed for a preliminary conference by telephone on 31 October 2023.
On 25 October 2023, the Applicant contacted my Chambers by email informing that he would be unavailable for the conference scheduled for 31 October 2023. His correspondence did not include any reason for his unavailability. The Applicant stated that the conference must be rescheduled to a time after the 5th of November 2023. Later that same day, the Respondent’s Representative also contact chambers informing that they would be amenable to rescheduling the preliminary conference and provided dates for their availability.
That same day, my Chambers wrote to the parties informing that the conference would be relisted to 9:30am on 9 November 2023. This correspondence indicated that the directions for the filing of material remained unchanged.
The Applicant failed to file his material as directed. At 1:03pm on 2 November 2023, the Respondent’s Representative wrote to my Chambers, enquiring whether any material had been received in accordance with the directions. My Chambers wrote to all parties informing that the material had not been filed and granted an extension to file the Applicant’s material together with a reasonable explanation for the Applicant’s failure to comply with the directions by 4:00pm on 3 November 2023. No response was received.
At 4:49pm on 3 November 2023, the Respondent applied for the dismissal of this matter pursuant to s.399A(1)(b) of the Act. On 4 November 2023, the Applicant responded to Chambers copied to the Respondent as follows:
“Hello,
As I’ve previously informed you in writing. I am unavailable until the 3rd of November. That means I am NOT available, not available to answer calls, not available to answer emails, not available to talk in person.
I am currently working on a remote community with no phone reception, which also means I have no internet reception.
I’d like to pint (sic) out that more than calf (sic) of Australia is in an area that has NO phone or internet.
To get to phone reception it is a 3hr drive.
But I don’t feel I have to explain this to you again as I’ve already informed you in writing and you accepted that.
You have also been informed on writing that I will not be corresponding with Sarah Swsn (sic) in any way shape or form. There is currently separate legal action being taken against Swan and I will not be jeopardising that case by corresponding with it at all…
My case is not with the QLD hotels association. I did not work for the QLD hotels association, I have no interest in dealing with the QLD Hotels association in any way shape or form.
My case is against Spicers and them only.
I also have not given spicers permission to pass on my private and confidential information to a third party, which will be discussed on the 9th as agreed.
I will be back at work as of this afternoon and will therefore be out of phone and internet range. I will not be jeopardising my current employment to forfill (sic) any requests from you until the agreed date of the 9th of November.
I am not going to tolerate any further harassment and intimidation from Swan or Spicers.”
At 9:09am on 7 November 2023, I directed the Applicant file submissions as to why his application should not be dismissed, in response to the Application for dismissal pursuant to s.399A by the Respondent dated 3 November 2023. The Applicant was directed to file the submissions with my Chambers and serve a copy on the Respondent by no later than 4:00pm on 8 November 2023.
On 7 November 2023 at 1:19pm & 2:53pm (AEST), the Applicant contacted my Chambers by telephone and left voicemails stating that he required that my Chambers contact him before 5:00pm that day. An Associate acting as a relief to my Associate contacted the Applicant by telephone and the Applicant refused to speak with anyone other than my Associate. The Applicant was informed that my Associate was unavailable and on leave. The Applicant still refused to speak with anyone other than my Associate and indicated that he would not be available by phone until 9 November 2023.
On 8 November 2023, my Chambers wrote to the parties acknowledging the Applicant’s contact with Chambers the day prior. This correspondence indicated that the directions issued by me had been outlined in the previous correspondence from Chambers. This correspondence reminded the Applicant that his response to the Respondent’s application pursuant to s.399A of the Act was to be filed by no later than 4:00pm (AEST/QLD) that day and indicated that in the absence of any response from him, that the conference would be vacated and that a decision would issue.
Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s.399A(1)(b)). I am satisfied that the Applicant unreasonably failed to comply with my directions of 18 October 2023, 25 October 2023, 2 November 2023 and 7 November 2023. The details of those directions and the hearing are set out in the preceding paragraphs. The Applicant failed to comply with those directions and failed provide any reason for his non-compliance. I consider that the failure was unreasonable for the following reasons:
(A)The Applicant has repeatedly failed to comply with my directions;
(B)The Applicant has repeatedly failed to offer any reasonable explanation for his failure to comply with the directions;
(C)The Applicant claims to have been out of communication however it is clear that he received the correspondence from my chambers including the directions. He had the capacity to make phone calls to my chambers therefore he had the capacity to comply with my directions by email; and
(D)I consider that the Applicant has been afforded multiple reasonable opportunities to redress his non-compliance but has failed to do so. In particular, the Applicant has not since provided an acceptable explanation for his failure or given any indication that he intends to file his materials in the near future. Nor has the Applicant filed any submissions as to why his application should not be dismissed pursuant to the s.399A application brought by the Respondent.
My discretion to dismiss the Applicant’s unfair dismissal application under s.399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for his failure to comply with my directions and the fact that he has persisted in failing to file his materials. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application. The Respondent is entitled to understand the case that is put against it in good time so that it may properly respond. This is a matter of basic fairness.
For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.399A.
Pursuant to s.399A, the Applicant’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
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