Ahmed Elzeiny v Combined Dispensaries Friendly Society Ltd T/A Friendly's Chemist

[2010] FWA 9498

[2010] FWA 9498

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ahmed Elzeiny
v
Combined Dispensaries Friendly Society Ltd T/A Friendly’s Chemist
(U2010/9100)

COMMISSIONER THATCHER SYDNEY, 9 DECEMBER 2010

Application for unfair dismissal remedy - failure of applicant to attend

[1] On 25 May 2010 Mr Ahmed Elzeiny made application to Fair Work Australia (FWA) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy on the basis that his dismissal as a pharmacist, Combined Dispensaries Friendly Society Ltd t/a Friendly’s Chemist (Friendly’s Chemist) was harsh, unjust or unreasonable.

[2] The application was filed with FWA out of time and in a decision dated 21 September 2010, Commissioner Roberts extended the time for the lodgement of the application until the actual date of filing. 1

[3] After the application was listed for hearing, FWA issued Mr Elzeiny with directions to lodge relevant material by 1 November 2010. He failed to comply with those directions.

[4] The application was listed for a non-compliance hearing before Acton SDP on 11 November 2010. Although Friendly’s Chemist appeared at the hearing, Mr Elzeiny did not attend but sought an extension of time on the basis that he would be in Egypt until 4 December 2010 looking after his father who was ill. FWA requested a medical certificate attesting to his father’s illness. No certificate was forthcoming.

[5] FWA has heard nothing further from Mr Elzeiny.

[6] Mr Elzeiny did not attend at today’s hearing. An attempt by my chambers to contact Mr Elzeiny on the telephone number he provided has been unsuccessful.

[7] Section 577 (Performance of functions etc by FWA) of the Act requires FWA to perform its functions and exercise its powers in a manner that, amongst other things, is fair, just and quick.

[8] Section 578 (Matters FWA must take into account in performing functions etc.) of the Act relevantly provides:

“In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWA must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; ...”

[9] Section 381 (Object of this Part) within Part 3-2 (Unfair Dismissal) of the Act prescribes:

“(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned.

Note: The expression ‘fair go all round’ was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[10] Mr Elzeiny has had ample opportunity to progress his application. He has been given a fair go but has not availed himself of the opportunity to press his application.

[11] Section 587 (Dismissing Applications) of the Act empowers FWA to dismiss an application on its own initiative. In my view that action is warranted because such action gives balance to the needs of Friendly’s Chemist (which opposes the application) and gives it a fair go.

[12] The application is dismissed and I order accordingly.

COMMISSIONER

 1   [2010] FWA 7291, 21 September 2010.

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