Andrew Zelinka v Woolworths Group Ltd
[2022] FWC 1393
•3 JUNE 2022
| [2022] FWC 1393 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Zelinka
v
Woolworths Group Ltd
(U2022/3762)
| DEPUTY PRESIDENT BELL | MELBOURNE, 3 JUNE 2022 |
Application for an unfair dismissal remedy – s.399A and s.587 – application dismissed
On 30 March 2022, Mr Andrew Zelinka (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Woolworths Group Ltd (Respondent) on 13 March 2022. The Respondent agrees the Applicant was dismissed on 13 March 2022 but denies the dismissal was unfair. In his Form F2, Mr Zelinka provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter.
On 13 May 2022, the file was allocated to me, and on 18 May 2022, I issued directions to the parties. The directions were sent to the Applicant by his nominated email address and, among other matters, required his attendance at a mention hearing listed for 26 May 2022 at 3:30pm by Microsoft Teams.
On 25 May 2022, in preparation for the scheduled mention hearing, an attempt was made to contact the Applicant by his telephone number to confirm his attendance. As the Applicant did not respond, a voice message was left advising that he was required to attend the mention hearing the next day and requesting that he either reply to the 18 May email or ring chambers in response. An email was subsequently sent the same day with details about the mention hearing listing, how to access it, and the telephone call made to him earlier that day.
On 26 May 2022, a further call was made to the Applicant to the same effect advising of the mention and seeking confirmation of his attendance. It was not answered, and no return call or email was received by chambers.
On 26 May 2022, the Applicant did not attend the scheduled mention hearing. The Respondent did attend, although the mention proceeded only on a limited basis in respect of the Applicant’s matter, given the absence of the Applicant. The Applicant listed the Respondent’s legal name as ‘Woolworths Ltd’. As the correct name was ‘Woolworths Group Limited’, I amended the name of the Respondent as recorded on the file.
On 31 May 2022, I received in chambers an application by the Respondent - made under s.399A of the Act - for the Applicant’s application to be dismissed.
On 31 May 2022 at 4:02pm, the Applicant was sent an email from chambers giving him an opportunity to respond to the Respondent’s application. The email noted:
· that he had failed to attend the mention on 26 May 2022, despite several attempts to contact him prior to the mention via both email and on the mobile number provided to the Commission in him application.
· prior to the mention, he was advised, on the Notice of Listing and in subsequent emails and voice messages, that he was required to attend the mention.
· the Commission was unable to reach him on his mobile number on the day of the mention, and had not received an explanation for his non-attendance.
Among other matters, the email also set out s.399A of the Act and attached the Respondent’s application. The email directed the Applicant to file with the Commission and serve on the respondent submissions, evidence or other documentary material in support, as to why the Commission should not dismiss his application. This material was required by no later than 4:00pm, Thursday 2 June 2022.
No material was filed by the Applicant, nor any contact made by him.
On 2 June 2022, a further phone call was made to the Applicant, who did not reply. A voice message was left advising that the Respondent had made an application to dismiss his claim under s.399A of the Fair Work Act and drawing attention to the email sent on 31 May 2022 which required the Applicant to file and serve any submissions, evidence, or other material in support, as to why the Commission should not dismiss his application. No reply was received.
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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing, except as provided by the Act. As Mr Zelinka did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
The power to dismiss an application if the non-compliance is considered to have been unreasonable is discretionary. Other than initially filing his application, the Applicant has failed to actively prosecute his case and has provided no explanation to the Commission for his failure to attend the mention on 26 May 2022.
I am satisfied that the Applicant has acted unreasonably in failing to attend the mention hearing on 26 May 2022, because he was advised of it, and the requirement for him to attend, in advance via the contact details he has provided and has made no response to the repeated Commission attempts to contact him. Further, I consider the Applicant has unreasonably failed to comply with my direction to respond to the s.399A application.
Having regard to the circumstances of this matter, I have determined that I should exercise my discretion under s.399A and dismiss Mr Zelinka’s unfair dismissal application.
An Order[1] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
[1] PR742267
Printed by authority of the Commonwealth Government Printer
<PR742266>
0
0
0