Wade De Maniel v Coles Supermarket T/A Coles Supermarket Kawana Waters

[2018] FWC 4247

[2018] FWC 4247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wade De Maniel
v
Coles Supermarket T/A Coles Supermarket Kawana Waters
(U2018/3784)

COMMISSIONER BISSETT MELBOURNE, 19 JULY 2018

Application for an unfair dismissal remedy.

[1] On 11 April 2018, Mr Wade De Maniel 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). Mr De Maniel said his employment had been terminated by Coles Supermarket t/a Coles Supermarket Kawana Waters (Coles) on 26 March 2018.

[2] A Notice of Listing was issued to parties on 13 April 2018 scheduling a conciliation on 14 May 2018.

[3] Following a SMS reminder sent to parties on 11 May 2018, Mr De Maniel advised the Commission via email that he would be travelling and expected to be out of contact range at the time of the conciliation. Additionally, he stated “I am happy to drop the dispute due to this reasoning, and apologies for the delay.”

[4] Later on 11 May 2018, the Commission attempted to make contact with Mr De Maniel, via telephone, to ascertain his intentions regarding his application. An email was also sent to Mr De Maniel seeking a return call.

[5] On 14 May 2018, a further attempt to contact Mr De Maniel was made. This was unsuccessful and a voicemail was left.

[6] Due to operational reasons, the conciliation scheduled on 14 May 2018 was cancelled by the Commission. A Notice of Listing was issued to parties on 15 May 2018 confirming the rescheduling of the conciliation to 4 June 2018.

[7] On 30 May 2018, the Commission left two voicemails for Mr De Maniel, seeking to confirm his contact number for the conciliation. A letter was also emailed to Mr De Maniel on the same day requesting his confirmation.

[8] As no contact could be made with Mr De Maniel to confirm his attendance, the conciliation scheduled for 4 June 2018 was cancelled.

[9] On 4 June 2018, directions were issued to the parties and the matter was listed for an Arbitration hearing on 1-3 August 2018. Mr De Maniel was directed to file his material by no later than noon on 25 June 2018 and Coles was directed to file its material by no later than noon on 16 July 2018.

[10] On 25 and 26 June 2018, voicemail messages were left for Mr De Maniel seeking his return call in relation to his overdue material. An email was also sent to Mr De Maniel advising that a non-compliance hearing would be listed if he did not file his material or seek an extension to file his material by noon on 27 June 2018.

[11] On 28 June 2018, a further attempt to contact Mr De Maniel was made and a voicemail was left seeking his return call. The voicemail also advised that the matter would be listed for a non-compliance hearing the next day. On the same day, a Notice of Listing was issued to parties scheduling the non-compliance hearing on 29 June 2018.

[12] Prior to the non-compliance hearing on 29 June 2018, Coles filed an application pursuant to s.399A of the Act to dismiss Mr De Maniel’s matter due to his failure to comply with the direction of the Commission.

[13] The non-compliance hearing proceeded before Deputy President Masson on 29 June 2018. Mr De Maniel could not be contacted. The Deputy President accepted Coles’ application to have the matter dismissed.

[14] Following the non-compliance hearing, correspondence was sent to Mr De Maniel, via email, advising him of Coles’ s.399A application. Mr De Maniel was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by close of business on 6 July 2018.

[15] To date, Mr De Maniel has not filed any material with the Commission.

[16] 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.’

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

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

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr De Maniel has failed to respond to numerous attempts made by the Commission to contact him. Apart from initially filing his application, Mr De Maniel has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr De Maniel’s application.

[20] An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR609112>