Alvin Kumaran v TAL

[2017] FWC 1158

[2017] FWC 1158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alvin Kumaran
v
TAL
(U2016/8015)

COMMISSIONER JOHNS SYDNEY, 3 MARCH 2017

Application for relief from unfair dismissal – s.339A(1) application to dismiss.

[1] On 28 June 2016, Alvin Kumaran (applicant) made an application (signed 19 June 2016) to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). Mr Kumaran alleged his employment had been terminated unfairly by TAL Services Limited (respondent) on 3 June 2016.

[2] The matter was initially allocated to Senior Deputy President Drake.

[3] The respondent raised an objection to the Commission hearing and determining the matter on the basis that the applicant lodged his application outside the prescribed 21 day time limit.

[4] On 11 July 2016, the applicant wrote to the Commission outlining the reasons he believed he should be granted an extension of time to file his application.

[5] On 20 July 2016, the respondent filed submissions objecting to the applicant’s extension of time application.

[6] Consequently, directions were issued and the matter was listed for jurisdictional hearing on 2 September 2016. The applicant emailed the Commission on 1 August 2016 advising that he will be out of the country from 1 September 2016 to 7 September 2016. As a result, the matter was relisted for jurisdictional hearing before the Senior Deputy President on 16 September 2016.

[7] At the hearing on 16 September 2016, the applicant appeared with a duty solicitor. Mr Ethan Dabbagh, Corporate Counsel appeared for the respondent. At the hearing the applicant made a request to adjourn the matter to a later date because of his health and to avoid interference with his application in a separate jurisdiction. The applicant stated that he would seek further legal advice about whether he intended to continue with his unfair dismissal application, and inform the Commission in due course.

[8] On 19 October 2016, the Senior Deputy President’s chambers emailed the applicant requesting an update on the matter. The applicant did not respond to the email.

[9] On 27 October 2017, the Senior Deputy President’s chambers emailed the duty solicitor who assisted the applicant at the jurisdictional hearing, asking whether the duty solicitor had heard from the applicant in regards to his application. The duty solicitor advised that she did not provide the applicant with her details, and has not heard from the applicant.

[10] On 10 November 2016, the Senior Deputy President’s chambers again emailed the applicant and noted that they did not receive a response to their email sent on 19 October 2016, and directed that, unless the applicant responded within seven days, her honour intended to dismiss his application for an extension of time.

[11] On 16 November 2016, the applicant emailed the Commission and confirmed that he intended to continue with his application, however was still struggling with health issues, and that his proceedings in a separate jurisdiction would be finalised by 22 November 2016. The applicant advised that he would contact the Commission to provide another date for jurisdictional hearing.

[12] On 2 December 2016, the Commission emailed the applicant and directed the applicant to confirm his intention to continue with his application, and unless a response was received within seven days of the email, his application would be dismissed without further notice. The applicant replied back that same day and confirmed he intended to proceed with the matter.

[13] At around 21 December 2016, the matter was reallocated to me. On that day a notice of listing was issued, listing the matter for a jurisdictional hearing before me on 21 February 2017. On the notice of listing the parties were directed to file any material no later than 14 days prior to the hearing. The applicant failed to comply with this direction.

[14] At the hearing on 21 February 2017, the applicant failed to attend. Mr Dabbagh appeared for the respondent. Attempts were made to contact the applicant before commencing the hearing, but were unsuccessful.

[15] At the hearing, the respondent made an application that the Commission exercise its discretion under s.399A(1) of the FW Act to dismiss the applicant’s application because of the applicant’s failure to attend a hearing conducted by the Commission.

[16] On 21 February 2017, the Commission wrote to the applicant advising him of the respondent’s application under s.399A(1). The letter directed the applicant to file in the Commission and serve on the respondent reasons for his failure to attend the hearing (February Direction).

[17] The applicant did not comply with the February Direction.

[18] On 27 February 2017, the respondent emailed the Commission and noted that they had not received a response from the applicant to the February Directions and again confirmed their request that the Commission exercise its discretion under s.399A(1) of the FW Act to dismiss the application.

[19] 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.

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

[21] Because Mr Kumaran did not file any material in opposition to the application to dismiss his application for unfair dismissal remedy, I will determine the s.399A application on the papers.

 
[22] I am satisfied that Mr Kumaran unreasonably failed to attend the hearing on 21 February 2017.

[23] Consequently, after considering all the material, Mr Kumaran’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today

COMMISSIONER

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