Alexander Hinde v Rasier Pacific Pty Ltd [2018] FWC 1764

1 Fair Work Act 2009 s.394—Unfair dismissal Alexander Hinde v Rasier Pacific Pty Ltd (U2017/13967) DEPUTY PRESIDENT DEAN SYDNEY, 3 APRIL 2018 Application for relief from unfair dismissal - s.399A - application dismissed. [1] In a telephone hearing on 26 March 2018, I dismissed Mr Hinde’s application under s.399A of the Fair Work Act 2009 (the Act). The following are my reasons for decision. Background [2] On 28 December 2017, Mr Hinde made an application pursuant to s.394 of the Act seeking a remedy for his alleged unfair dismissal by ‘Uber’. The respondent’s name was subsequently amended, with consent of the parties, to Rasier Pacific Pty Ltd (Rasier Pacific or the respondent). [3] Mr Hinde’s application was the subject of a mention by telephone before me on 16 February 2018. During these proceeding, the future conduct of the matter was discussed. The parties were advised that the matter would be listed for a hearing to deal with Rasier Pacific’s jurisdictional objections, which included that Mr Hinde was not an employee of the respondent and therefore was not a person protected from unfair dismissal. The issue of whether Mr Hinde could satisfy the Commission that he was an employee, in light of the decision of Deputy President Gostencnik in Kaseris v Raiser Pacific V.O. F1 (of which Mr Hinde had been provided with a copy) was discussed extensively during these proceedings. [4] Mr Hinde was told that he would have about three weeks to file an outline of submissions and any other material he intended to rely upon in support of his contention that he was an employee of the respondent. Directions were issued and sent to the parties later on the same day and parties were also given notice that the matter was listed for hearing on 11 April 2018. [5] Mr Hinde did not file his material by 4:00 pm on 9 March 2018 as required. He was contacted by the Commission by telephone on 9 March 2018 and was reminded of the directions with which he was required to comply. [6] On 14 March 2018 Mr Hinde sent an email to the Commission in which he raised a question whether the upcoming hearing would be held in private or in public. Mr Hinde made [2018] FWC 1764 REASONS FOR DECISION -- 1 of 3 -- [2018] FWC 1764 2 no mention in his email of the filing of material and in the Commission’s response to him on the same day, Mr Hinde was again informed of his non-compliance with the directions. [7] On 15 March 2018, Rasier Pacific made an application to the Commission seeking Mr Hinde’s application be dismissed pursuant to s.399A of the Act, on the basis that he failed to comply with the directions of the Commission. It was submitted that Mr Hinde’s failure to comply, and his lack of communication with the Commission and the respondent in respect of the failure, amounted to a failure to prosecute his case and was an unreasonable failure to comply with directions of the Commission. [8] A hearing was conducted on 26 March 2018 by telephone to consider Rasier Pacific’s application under s.399A. Mr Hinde appeared on his own behalf and Ms C King appeared, with permission, with Mr C Loughlin for Rasier Pacific. [9] Mr Hinde made no suggestion that he was unaware of the directions issued and did not dispute the non-compliance. His response was that: “I thought I had more time but I don’t.” Relevant legislation [10] Section 399A of the Act relevantly provides: “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.” Conclusion [11] It was clear that Mr Hinde was aware of the requirement to file material in accordance with the Directions. Despite the Commission contacting Mr Hinde by both telephone and email advising him that he had not filed material in accordance with the directions, Mr Hinde neither sought an extension of time nor provided any satisfactory reason for his failure to comply. -- 2 of 3 -- [2018] FWC 1764 3 [12] In the absence of any acceptable explanation, I was satisfied that Mr Hinde had unreasonably failed to comply with a direction of the Commission. I decided in the circumstances I should exercise my discretion to dismiss Mr Hinde’s application pursuant to s.399A(1)(b) of the Act. Accordingly, Rasier Pacific’s application under s.399A was granted and an order to that effect was issued on 26 March 2018. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR601479> 1 [2017] FWC 6610. -- 3 of 3 --