Agouth Majok Mel v Australian Red Cross Society

[2020] FWC 3762

[2020] FWC 3762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Agouth Majok Mel
v
AUSTRALIAN RED CROSS SOCIETY
(U2020/5732)

COMMISSIONER BISSETT MELBOURNE, 17 JULY 2020

Application for an unfair dismissal remedy – s.399A application to dismiss.

[1] On 25 April 2020, Mr Agouth Majok Mel (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant alleges he was dismissed from his employment with the Australian Red Cross Society (Respondent) on 20 April 2020.

[2] The matter was listed for conciliation on 17 June 2020. A SMS text message was sent to the parties on 16 June 2020 reminding them of the conciliation scheduled for the following day.

[3] The matter did not resolve at conciliation on 17 June 2020.

[4] On 18 June 2020, the Applicant’s representative advised the Commission that settlement had not been reached and that the Applicant had elected to proceed to a hearing in this matter and that the Respondent had been advised of same.

[5] On 20 June 2020, the Applicant’s representative filed a Form F54 Notice of Representative Ceasing to Act.

[6] This matter was listed for Telephone Mention before me on 29 June 2020 at 4.30 pm.

[7] On 29 June 2020 at 10.01 am, my chambers emailed the Applicant requesting his direct contact number for the Telephone Mention.

[8] On 29 June 2020 at 4.30 pm, by chambers attempted to contact the Applicant twice on the mobile telephone number provided in his Form F2 application form. The calls were not answered, and voicemail messages were left requesting he contact my chambers.

[9] On 29 June 2020 at 6.33 pm, the Commission emailed correspondence to the Applicant’s nominated email address. The Applicant was directed to advise the Commission by 4.00 pm on 7 July 2020 if he wished to continue with his unfair dismissal case. The correspondence stated that if the Commission did not receive a response, his matter may be dismissed.

[10] No response was received to this correspondence.

[11] On 8 July 2020, the Respondent filed an objection to the application and sought the dismissal of the Applicant’s application. The Respondent based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the Telephone Mention.

[12] On 9 July 2020, the Applicant was sent correspondence informing him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by 12.00 noon on 14 July 2020. The Applicant was advised that if he failed to comply with this direction, his application would be dismissed.

[13] To date, the Applicant has not filed any material with or otherwise contacted the Commission.

[14] Section 399A of the FW 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.

[15] I am satisfied that the Respondent’s objection filed on 8 July 2020 is an application to have the matter dismissed for the Applicant’s failure to comply with a direction and failure to attend the mention.

[16] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him. The Applicant has failed to attend the Telephone Mention on 29 June 2020 and failed to comply with the direction of the Commission issued on 29 June 2020.

[18] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order giving effect to this decision will be issued separately.

COMMISSIONER

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