Thomas Price v Independent Liquor Group Distribution Cooperative T/A Ilg

[2017] FWC 3338

[2017] FWC 3338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Price
v
Independent Liquor Group Distribution Cooperative T/A ILG
(U2017/3121)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 20 March 2017, Mr Thomas Price made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Price said he was notified of his dismissal on 16 March 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 26 April 2017, however Mr Price advised the conciliator that he had new employment and did not have time to participate in a conciliation. Mr Price’s representative from Unfair Dismissals Australia Pty Ltd (UDA) advised they had no instructions from Mr Price and accordingly the conciliation could not proceed. Later the same day, UDA requested a second conciliation and provided dates they were available. Independent Liquor Group Distribution Cooperative (ILG) also requested a second conciliation.

[3] On 27 April 2017, Mr Price advised the conciliator he is unavailable Monday to Friday, between 7.00am and 5.30pm due to full time work. The following day, Mr Price sent a two page document to the conciliator in response to comments made by ILG.

[4] On 28 April 2017, the Fair Work Commission wrote to Mr Price requesting he advise any date in May that he would be available to participate in a conciliation. As no response was received from Mr Price, on 5 May 2017 the file was referred for programming for hearing.

[5] On 8 May 2017, Mr Price left a voicemail with the Unfair Dismissal Case Management Team requesting a return call and noted that he wished to proceed with the matter.

[6] On 9 May 2017, directions were issued and the matter was listed for hearing. Mr Price was directed to file an outline of argument, statement of evidence and document list by noon, Monday 29 May 2017. The directions were sent via email to each of Mr Price and Mr Daniel Kozijevic of UDA. On the same day, UDA queried why the matter had not been listed for a second conciliation. A reply was sent noting the correspondence referred to in paragraphs [3] and [4] above. An attempt to telephone Mr Price was also made in response to his voicemail, however this was unsuccessful and a message was left advising the matter had been listed for hearing and that a Notice of Listing had been sent to him.

[7] On 16 May 2017, UDA advised that despite Mr Price not being available to attend a conciliation, it had instructions to attend on Mr Price’s behalf. The Commission requested confirmation, in writing, of UDA’s authority to settle the matter prior to listing for conciliation and noted that ILG’s consent to the course of action would need to be confirmed.

[8] On 17 May 2017, ILG advised its preference was for Mr Price to be present at the conciliation so the matter could be properly assessed. In light of this correspondence, the following day, the Commission advised ILG and UDA that the matter would proceed to arbitration.

[9] In the afternoon of 29 May 2017, a message was left with UDA seeking a return call in relation to Mr Price’s material which was due to be filed by noon that day, but which had not been received. The following day, UDA filed a Form F54 – Notice of Representative Ceasing to Act.

[10] On 30 May 2017, two voicemails were left for Mr Price regarding his outstanding material. An SMS message was also sent requesting a return call, as well as an email which noted if no contact was made by Mr Price with the Commission, the matter would be listed for a non compliance hearing on Friday 2 June 2017. The following day, a further voicemail was left and SMS message sent, seeking that Mr Price contact the Commission in relation to his outstanding material.

[11] As no material had been filed, the matter was listed for a non compliance hearing before Deputy President Gooley on 2 June 2017. The Notice of Listing was sent on 31 May 2017 and an SMS message was sent to Mr Price confirming same on 1 June 2017.

[12] Mr Price did not attend the non compliance hearing. ILG made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Price had failed to comply with the direction of the Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted ILG’s oral application. Correspondence was then sent to Mr Price informing him of ILG’s s.399A application. Mr Price was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Tuesday, 13 June 2017. This correspondence was sent to Mr Price via email and post.

[13] To date, Mr Price has not filed any material with the Commission.

[14] 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.

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

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

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Since Mr Price’s voicemail with the Commission on 8 May 2017, there have been many attempts to contact him, including via email, telephone, SMS message and post. Despite saying in his voicemail of 8 May 2017 that he wished to pursue his matter, Mr Price has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Price’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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