Timothy Burns v Aruma

[2021] FWC 6676

[2021] FWC 6676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Burns
v
Aruma
(U2021/9526)

COMMISSIONER BISSETT MELBOURNE, 24 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 24 October 2021 Mr Timothy Burns made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Mr Burns alleged he was unfairly dismissed by Aruma (the Respondent) on 15 October 2021.

[2] The Respondent objected to the application on the basis that Mr Burns had not been dismissed. However, it agreed to participate in voluntary conciliation.

[3] The matter was listed for conciliation before a staff conciliator on 22 November 2021.

[4] On 22 November 2021 Mr Burns could not be reached by the staff conciliator. At least four attempts were made by the conciliator to reach Mr Burns by telephone and voicemails were left requesting he call back in order for the conciliation to proceed. The conciliator also emailed Mr Burns requesting he urgently contact the Commission. Shortly thereafter, a final attempt to reach Mr Burns by telephone was made and another voicemail was left.

[5] Later that day, Mr Burns replied by email advising he was unwell and felt he could not adequately engage with the conciliation as listed.

[6] On 25 and 29 November 2021 the Commission requested confirmation from Mr Burns as to whether he would like to participate in a second attempt at conciliation. Mr Burns replied on 29 November 2021 advising that he would like to do so.

[7] On 1 December 2021 the Respondent advised that it consented to a second attempt at conciliation.

[8] The matter was listed for a second conciliation on 16 December 2021.

[9] At the conciliation on 16 December 2021 Mr Burns could not be reached. Three attempts at reaching Mr Burns by telephone were initially made with voicemails left requesting Mr Burns to contact the conciliator. An email was also sent to Mr Burns urgently requesting he make contact. Subsequent to the email being sent a further attempt to reach Mr Burns by telephone was made but was unsuccessful.

[10] Mr Burns’ application was subsequently allocated to me.

[11] On 17 December 2021 my chambers issued correspondence to Mr Burns in the following terms:

I refer to the application for an unfair dismissal remedy made by you on 24 October 2021. Your application was listed for conciliation before a staff conciliator on 22 November 2021 and 16 December 2021.

On both occasions several attempts were made by the Commission to contact you for conciliation however you could not be reached. You have not provided an explanation to the Commission as to why you failed to attend.

Your application has now been referred to Commissioner Bissett. The Commissioner is considering dismissing your application due to the non-attendance and apparent disengagement with the Commission.

Commissioner Bissett directs you to file submissions by reply email as to why your application should not be dismissed by 4.00 pm Wednesday 22 December 2021.

Failure to provide submissions may result in your application being dismissed by the Commission without further correspondence.

[12] An SMS message was also sent by the Commission to Mr Burns’ nominated telephone number.

[13] On the morning of Thursday 23 December 2021 my chambers again attempted to reach Mr Burns by telephone as he had not responded to the direction in the email issued by my chambers. There was no answer and a voicemail message was left referring to the correspondence of 17 December 2021 and requesting Mr Burns reply to the email or return the call by 4.00 pm Thursday 23 December 2021.

[14] To date there has been no response from Mr Burns to my chambers’ correspondence.

[15] Section 587(1) of the FW Act provides that:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospect of success.

[16] Without prior explanation or a request for an adjournment Mr Burns failed to attend the first conciliation. Despite confirming that he wished to attend a second conciliation, Mr Burns likewise failed to attend the second conciliation without explanation. The Respondent twice agreed to voluntary conciliation and in agreeing to the second conciliation exercised in good faith its willingness to attempt to resolve the application by agreement rather than formal arbitration.

[17] Mr Burns’ failure to attend two conciliations and to respond to the direction issued by my chambers provides little confidence that he would comply with any directions issued for the filing of materials and evidence and attendance at a formal hearing.

[18] The Applicant appears to have disengaged with the Commission without adequate explanation.

[19] In deciding whether to dismiss an application pursuant to s.587 of the FW Act the Commission is not limited to those matters in s.587(1)(a)-(c) – this much is clear from the opening words “Without limiting when the FWC may dismiss an application…” found in s.587(1). I am satisfied that the failure of the Applicant to attend two listed conciliations and his failure to respond to a direction from the Commission provides grounds for me to dismiss the application.

[20] For these reasons I have determined to dismiss the application pursuant to s.587(1) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR737102>

 1   PR737103.