Warren Anthony v Sustainable Construction Services Pty Ltd

[2017] FWC 5348

[2017] FWC 5348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warren Anthony
v
Sustainable Construction Services Pty Ltd
(U2017/6331)

COMMISSIONER WILSON DARWIN, 17 OCTOBER 2017

Application for relief from unfair dismissal - application dismissed pursuant to section 399A of the Act.

[1] On 14 June 2017, Mr Warren Anthony made an application for unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). Mr Anthony’s employment had been terminated by Sustainable Construction Services Pty Ltd (‘SCS’) on 8 May 2017.

[2] The matter was listed for an initial conciliation on 31 July 2017, however the conciliation did not proceed as Mr Anthony did not turn up. The Conciliator and the Applicant’s representative at the time attempted contacting Mr Anthony who advised subsequently that he did not attend because he had forgotten about the conciliation and his agreed time to meet with his representative.

[3] After the attempted conciliation, Directions were issued by the Commission on 17 August 2017, and the matter was listed for hearing in Melbourne on 15 September 2017.

[4] Mr Anthony was directed to file an outline of submissions and any evidence he wished to rely on by noon on 24 August 2017.

[5] On 28 August 2017, four days after his submissions were due the Commission contacted Mr Anthony via telephone to remind him his submissions were overdue. Mr Anthony advised that he wished to continue with the application but that he was having difficulty obtaining representation. Mr Anthony was advised that he should seek permission for an extension of time, given his submissions were already due.

[6] On 30 August 2017, Mr Anthony requested an extension of time to file, which was partially granted by the Commission giving him until 4 PM on 1 September 2017 to file his submissions.

[7] Mr Anthony however, again did not comply with this direction. As a result the Commission contacted Mr Anthony via text message on 4 September 2017 reminding him that his written submissions were overdue.

[8] Shortly after, the Respondent, SCS made an application to have the application dismissed under s.399A of the Act due to Mr Anthony’s failure to comply with the Directions of the Commission, this was received by the Commission and forwarded to Mr Anthony on 8 September 2017.

[9] As a result, on the same date the original Directions were vacated and Mr Anthony was issued with revised Directions to provide his reasons as to why the Commission should not dismiss his application for failing to file in accordance with Directions.

[10] Mr Anthony did not respond to these Directions and therefore on 11 October 2017 the Commission contacted Mr Anthony via telephone to follow up. Mr Anthony confirmed he wished to proceed with the application and that he had received the Respondent’s s.399A application to dismiss. The Commission advised that given non-compliance with previous Directions and the Respondent’s subsequent application for dismissal of the application, the matter would be re-listed for a non-compliance hearing on 13 October 2017 which it was and Mr Anthony was in attendance at that hearing.

[11] In the course of the hearing on 13 October 2017 disputed having been aware of the requirement for him to file material in support of his application by no later than 1 September 2017. He confirmed his email address as being the same as the one on the Commission’s file, and advised that his home address had recently changed.

[12] 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”.

[13] I am satisfied that SCS’s objection filed on 8 September 2017 is an application to have the matter dismissed for Mr Anthony’s failure to comply with a direction of the Commission.

[14] During the non-compliance hearing, Mr Anthony submitted that he was non-compliant with the Directions due to not receiving correspondence from the Commission.

[15] Alternatively, SCS submitted that the Applicant had been given several opportunities to respond, however had not done so on each occasion.

[16] Whilst during the hearing Mr Anthony made submissions that he made moved house and changed postal address meaning he therefore did not receive the Commission’s correspondence. He failed to provide a satisfactory explanation for his non-compliance with the Directions even after his two telephone conversations with the Commission. Firstly, on 28 August 2017 where he confirmed his understanding that his submissions were overdue but that he was having trouble obtaining legal representation, subsequently resulting in him applying for an extension of time. Then again on 30 August 2017 when the Commission confirmed his extension of time request had been partially granted until 4pm 1 September 2017.

[17] Based on this, I therefore find this failure to be unreasonable given the clear contact made with the Applicant by the Commission.

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to the many attempts by the Commission progress his application. Whilst the Applicant advises he wishes to proceed with his application, he has repeatedly failed to file submissions without reasonable excuse. In those circumstances, I will exercise my discretion and dismiss Mr Anthony’s application. An order giving effect to this decision will be issued in conjunction with this decision.

COMMISSIONER

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