Arif Shah v MSS Security

[2019] FWC 2306

[2019] FWC 2306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Arif Shah
v
MSS Security
(U2018/11961)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 20 November 2018, Mr Arif Shah made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Shah said his employment had been terminated by MSS Security on 30 October 2018.

[2] The matter was listed for conciliation on 9 January 2019, however it could not proceed due to Mr Shah’s unavailability. On 12 January 2019, Mr Shah wrote to the Commission and requested the matter be postponed until the following month due to a death having occurred in his family.

[3] A second conciliation was scheduled for 15 February 2019, however the matter did not resolve at that time.

[4] On 18 February 2019, a Notice of Listing was sent to the parties for the Arbitration Conference/Hearing. The listing included directions for the filing of material. Links were provided to template documents which could assist the parties in preparing their material. Mr Shah was directed to file his material by no later than noon on 12 March 2019.

[5] On 28 February 2019, MSS Security sought an adjournment of the hearing due to its unavailability. On 4 March 2019, an amended Notice of Listing was sent to the parties which provided new hearing dates. The directions to file material remained the same for both parties and links to template documents were again provided.

[6] In the afternoon of 12 March 2019, there was an attempt to contact Mr Shah on both phone numbers he recorded on his application. There was an indication that one number was out of service and on the other number a voicemail was left seeking a return call.

[7] On 13 March 2019, a further voicemail was left for Mr Shah in relation to his overdue material. Email correspondence was then sent to Mr Shah confirming no material had been received. He was advised if no extension request or submissions were received by 3.00pm that day, the matter would be listed for a non-compliance hearing on Friday, 15 March 2019. As there was no response from Mr Shah, a Notice of Listing was issued later that afternoon confirming the scheduling of a non-compliance hearing (via telephone) on 15 March 2019.

[8] At 8.22pm on 14 March 2019, Mr Shah sent an email to the Commission. He advised he was overseas due to a death in his family and he would be staying there for a couple of months. He said he would not be able to use his phone overseas and he requested an extension so that he could appear and comply. Mr Shah recorded a telephone number at the end of his email.

[9] The non-compliance hearing proceeded before me on 15 March 2019. My Associate attempted to telephone Mr Shah on two occasions on the phone number he had provided, however this was unsuccessful. MSS Security attended the hearing. Given the material before me, I determined to extend the time for Mr Shah to file his submissions. Mr Shah was given until noon on Friday, 22 March 2019 to file his material and the hearing dates were also adjourned to accommodate the extension given to the parties. I indicated to MSS Security that in the event Mr Shah did not comply with the new direction to file material, it would be open to it to file an application pursuant to s.399A of the Act. Following the non-compliance hearing, the amendments to the hearing dates and directions were notified to Mr Shah via email and post to the postal address he had provided.

[10] On Monday 25 March 2019, there was an attempt to contact Mr Shah on both phone numbers he recorded on his application. Again, there was an indication that one number was out of service and on the other number a voicemail was left seeking a return call.

[11] Following an email from MSS Security seeking confirmation of whether Mr Shah had filed his material by noon on 22 March 2019, the Commission advised MSS Security that no material had been received. On 25 March 2019, an application was received from MSS Security seeking that Mr Shah’s application be dismissed pursuant to s.399A of the Act due to Mr Shah’s failure to comply with directions of the Commission.

[12] On 27 March 2019, Mr Shah was sent email correspondence notifying him of the s.399A application made by MSS Security. He was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4.00pm on 4 April 2019. This correspondence stated that if the Commission did not receive a response, Mr Shah’s application for relief from unfair dismissal would likely be dismissed.

[13] To date, Mr Shah has not filed any material with the Commission.

[14] 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.

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

[16] As Mr Shah did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[17] Mr Shah advised the Commission of his family circumstances on 12 January 2019 and sought that the conciliation be postponed for one month. This request was granted. On 18 February 2019, directions for the filing of material were issued which were not ultimately complied with by Mr Shah. On 14 March 2019, presumably in response to the Notice of Listing for the non-compliance hearing he received the day prior, Mr Shah again requested an extension so he could “appear and comply.” I granted this request and Mr Shah was given a further week to file his material. I have noted, as referred to above, that links to template documents were provided on the Notice of Listing issued on 18 February and 4 March 2019 which could assist Mr Shah in preparing his material.

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Shah has not filed any material in support of his application or in response to the s.399A application made by MSS Security. I am satisfied Mr Shah, despite being overseas, has had access to a computer and email given his correspondence of 12 January and 14 March 2019. I am also satisfied he has been given a reasonable period of time to file his materials. In these circumstances, I find that Mr Shah has unreasonably failed to comply with directions of the Commission and I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Shah’s application. This ends his unfair dismissal application.

[19] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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