Ankitkumar Patel v Rpep Holdings Pty Ltd

[2012] FWA 3915

[2012] FWA 3915

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ankitkumar Patel
v
RPEP Holdings Pty Ltd
(U2011/3234)

COMMISSIONER HARRISON SYDNEY, 7 MAY 2012

Termination of employment - unfair dismissal - failure of applicant to attend and prosecute application.

[1] This matter concerns an application by Mr Ankitkumar Patel (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is RPEP Holdings Pty Ltd.

[2] The Applicant’s employment was terminated on 6 June 2011 and he lodged an application for relief on 29 June 2011, some 9 days after the statutory 14 day period for lodgement. The Respondent did not make any jurisdictional objection on this basis, or lodge any response to the application.

[3] Attempts to resolve the matter were unsuccessful and formal directions were issued on 7 September, requiring the Applicant to file an outline of submissions, witness statements and any other documents that he intended to rely on in support of his application by 26 September 2011. Concurrently the matter was listed for hearing/conference on 11 November 2011.

[4] The Applicant failed to comply with the directions.

[5] On 26 September the matter was listed for a non-compliance hearing on 29 September. The Applicant did not appear, and Commissioner Cambridge’s Associate was unable to contact him by telephone. The Applicant did not explain his failure to appear in an email sent later on 29 September. In a telephone call on 7 October, he told a member of the FWA Unfair Dismissals Team that he had attended FWA on 29 September, but was one hour late because he had been waiting for a witness.

[6] In the email of 29 September, the Applicant advised FWA that he was going overseas on 22 October and would not be able to attend the 11 November hearing/conference. In a follow-up telephone call on 5 October, he advised a member of the FWA Unfair Dismissals Team that he had bought a one-way ticket as his bridging visa had expired, and it might take 6 months to 1 year to obtain a new visa.

[7] On 25 October amended directions were issued requiring the Applicant to file an outline of submissions, any witness statements and other documentary material that he intended to rely upon in support of his application by 12 December. Concurrently, the listing for 11 November was cancelled and the matter was listed for hearing/conference on 7 May 2012.

[8] The Applicant failed to comply with the amended directions.

[9] On 16 December the matter was listed for a non-compliance hearing, by telephone, on 22 December. Senior Deputy President Acton was unable to contact the Applicant in order to conduct the non-compliance hearing. Her Honour noted that failure to attend the hearing/conference on 7 May would “in all probability” result in the dismissal of the application. 1 A copy of the transcript was sent to the Applicant’s email address.

[10] On 23 December the listing for 7 May was amended to excuse the Respondent from attending and from complying with previous directions to file written material.

[11] The Applicant did not appear at the 7 May hearing/conference. When my Associate attempted to contact him by telephone, it appeared that his mobile phone number had been disconnected.

[12] Section 577 of the Act requires the tribunal to perform its functions and exercise its powers in a manner that is fair, just, speedy, informal and avoids unnecessary technicalities.

[13] In this matter I am satisfied that the Applicant has been provided a fair go all round pursuant to s.381(2) of the Act. The Respondent is also entitled to a fair go in terms of having this application determined within a reasonable period of time.

[14] The Applicant has been on notice as to the consequence of non-compliance and failure to appear and in my opinion has been given more than a fair opportunity to prosecute his application. It has been impossible to contact the Applicant. It is not clear whether he is in Australia, and if not, when he might return.

[15] In these circumstances I have decided to dismiss the application pursuant to s.587(3) of the Act.

[16] An order to this effect will issue in conjunction with this decision.

COMMISSIONER

 1   Transcript of 22 December 2011, PN1.

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