Zac Stanton-King v Little Rock

[2019] FWC 4953

[2019] FWC 4953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zac Stanton-King
v
Little Rock
(U2019/4381)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 JULY 2019

Application for an unfair dismissal remedy.

[1] On 16 April 2019, Mr Zac Stanton-King 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).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Stanton-King said he was notified that his employment had been terminated by Little Rock on 8 April 2019, and that the dismissal took effect on the same day.

[3] On 2 May 2019, the Commission sent a Notice of Listing scheduling the matter for a conciliation on 27 May 2019. The Notice of Listing was sent to Mr Stanton-King’s nominated postal address and email address.

[4] Despite four attempts on 27 May 2019, the Commission was unable to contact Mr Stanton-King for the conciliation. The conciliation was therefore unable to proceed.

[5] Following this, the Commission sent correspondence to the parties advising that if either party wanted the matter to proceed to a further conciliation, they were required to request this within two working days, or the matter will be referred for arbitration.

[6] On 29 May 2019, the Commission emailed the parties advising that as the Commission had not heard from Mr Stanton-King, the matter was being referred to arbitration.

[7] On the following day on 30 May 2019, the Commission issued a Notice of Listing scheduling the matter for an Arbitration Conference/Hearing on 31 July 2019 to 2 August 2019. Directions were also issued requiring Mr Stanton-King to file an Outline of Argument, Statement(s) of Evidence and Document List by no later than noon on 17 June 2019. The Notice of Listing was sent to both Mr-Stanton-King’s nominated email and postal addresses.

[8] No material was received from Mr Stanton-King by noon on 17 June 2019. As a result, the Commission emailed Mr Stanton-King on the evening of 17 June 2019 to remind him that his materials were due earlier that day and requesting he advise the Commission as to when he intended to file his submissions.

[9] As there was no response to this email, a telephone call was made by the Commission to Mr Stanton-King on the morning of 18 June 2019 regarding his overdue material. Mr Stanton-King answered this call and advised the Commission that he “had a lot on.” The Commission advised Mr Stanton-King that he was currently non-compliant, and his matter was at risk of being listed for a non-compliance hearing which could result in his unfair dismissal application being dismissed. The Commission further advised Mr Stanton-King to either file his material or request an extension of time to file his material, and that he should do this as soon as possible. Mr Stanton-King advised that he would try.

[10] Following this, an email was sent to Mr Stanton-King warning him that if he did not contact the Commission by 4:00pm on 18 June 2019, the matter would be listed for a non-compliance hearing.

[11] As no response was received from Mr Stanton-King, the matter was listed for a non-compliance hearing and a Notice of Listing was sent to the parties confirming the details on 19 June 2019. The Notice of Listing was sent to Mr Stanton-King’s email address and by express post to his postal address. A review of the tracking ID number indicates that the Notice of Listing was delivered to Mr Stanton-King’s address on 20 June 2019.

[12] The Commission attempted to call Mr Stanton-King on the afternoon of 20 June 2019 and a voicemail message was left to advise that the matter had been listed for a non-compliance hearing on the following day, that he was required to attend and that he should make himself available to answer his phone.

[13] The non-compliance hearing proceeded before Commission McKinnon on 21 June 2019. Neither Mr Stanton-King nor a representative for Little Rock could be contacted. The Commissioner amended the Directions, requiring Mr Stanton-King to file his material by no later than noon on 1 July 2019. The amended Directions were issued in a Notice of Listing sent to Mr Stanton-King via his nominated email and postal addresses on 24 June 2019 and further stated

“Please note: If the applicant (Mr Zac Stanton-King) does not comply with the above requirements to file submissions, the respondent (Little Rock) may make an application under section 399A of the Fair Work Act 2009 to dismiss the unfair dismissal application due to unreasonable failure to comply with the directions of the Commission.”

[14] As no material was received by Mr Stanton-King by 1 July 2019, Little Rock made a written application on 8 July 2019 using a Form F1 Application seeking to dismiss Mr Stanton-King’s unfair dismissal application under s.399A of the Act due to his unreasonable failure to comply with the directions of the Commission.

[15] Correspondence was sent to Mr Stanton-King’s nominated email and postal addresses on 9 July 2019, advising him of Little Rock’s s.399A application. Mr Stanton-King was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4.00pm on 16 July 2019. The correspondence also noted that if the Commission did not receive a response, Mr Stanton-King’s application for relief from unfair dismissal may be dismissed. A review of the express post tracking ID indicates the correspondence was delivered to Mr Stanton-King’s address on 10 July 2019.

[16] To date, no materials have been filed by Mr Stanton King.

[17] 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.

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

[19] As Mr Stanton-King did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[20] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application, Mr Stanton-King has failed to actively prosecute his case. Besides answering the phone call from the Commission on 18 June 2019 and advising that “he had a lot on”, Mr Stanton-King has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 21 June 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Stanton-King’s application. This ends his unfair dismissal application.

[21] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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