Amandeep Singh v Hallett Concrete

[2023] FWC 1032

[2023] FWC 1032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amandeep Singh
v

Hallett Concrete

(U2023/2029)

COMMISSIONER WILSON MELBOURNE, 5 MAY 2023

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

1. On 10 March 2023, Mr Amandeep Singh (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Hallett Concrete (the Respondent). Mr Singh’s employment had been terminated on Tuesday, 14 February 2023.

1. Section 394(2) of the Act requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates provided in the Form F2 application, Mr Singh’s application was made outside of the statutory time limit, with it having been made three days after the expiry of the 21-day time period allowed for by the Act, which ended on Tuesday, 7 March 2023.

1. Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Singh’s application. 

1. The Respondent filed a Form F3 Employer’s Response Form on Tuesday, 21 March 2023 raising a jurisdictional objection that the application was filed out of time.

1. Directions were issued to parties on Tuesday, 28 March 2023.  The Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material he intended to rely on in support of an extension of time by 4.00PM Tuesday, 4 April 2023.

1. No submissions were filed by the Applicant by 4.00PM Tuesday, 4 April 2023.  On Wednesday, 5 April 2023 my Chambers wrote to Mr Singh advising that his application was at risk of being listed for non-compliance and directed that he file his materials that day. 

1. On the same day, Mr Singh responded requesting an extension to provide his submissions as he was in the process of seeking legal advice on his application.

1. I considered it appropriate to issue Amended Directions to the parties and to reset the hearing date following Mr Singh’s notification of the reasons for the non-compliance with the Commission’s Directions. On Thursday, 6 April 2023 Amended Directions were issued to parties. The Amended Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material he intended to rely on in support of an extension of time by 4.00PM Friday, 14 April 2023.  The parties were also put on notice that no further extension would be possible and if Mr Singh did not file in compliance with the Amended Directions the matter would be listed for a non-compliance hearing.

1. No response or submissions were received from the Applicant by the deadline in the Amended Directions.

1. On Monday, 17 April 2023 my Chambers wrote to parties advising that the Applicant was non-compliant with the Amended Directions and listing the matter for Non-compliance Hearing on Friday, 21 April 2023.

1. Both parties participated in the Non-compliance hearing. I granted permission for the Respondent to be legally represented during the proceeding.

1. During the Non-Compliance Hearing the Respondent made a s.399A application.

1. My Chambers wrote to the Applicant following the Non-Compliance Hearing to seek his views prior to determining the s.399A application. Mr Singh was directed to file with the Commission, and serve on the Respondent, submissions providing reasons as to why the Commission should not dismiss his application, with evidence or other documentary material to support the reasons.  The material was required by no later than 4:00PM on Monday, 1 May 2023.  The correspondence also stated that “if you don’t provide your reasons by 4:00pm AEST on Monday 1 May 2023, it is very likely that your case will be dismissed without further notice.”

1. I now turn to determining the s.399A application.

1. 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.”

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

1. As Mr Singh did not file any submissions in opposition to the s.399A application, I will determine the application on the papers.

1. There is no material presently before the Commission that would persuade me that the Applicant has attempted to defend the s.399A application.  I find these circumstances to be an unreasonable failure to comply with a direction of the Commission relating to the Applicant’s application for an unfair dismissal remedy.

1. After considering all the material, Mr Singh’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued with this decision.

COMMISSIONER

Appearances:

Mr A. Singh for himself
Ms M. Kaukas for the Respondent

Non-Compliance Hearing details:

Melbourne (via video conference);
21 April;
2023.

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