Ayman Fakih v Serendipity (WA) Pty Ltd T/A APM

[2018] FWC 3461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ayman Fakih

Serendipity (WA) Pty Ltd T/A APM

(U2018/3683)

Senior Deputy President Hamberger

SYDNEY, 19 JUNE 2018

Application for an unfair dismissal remedy – Fair Work Act 2009 (Cth) s.399A – application by respondent to dismiss originating application because applicant has failed to comply with direction – applicant’s failure found to be unreasonable – s.399A application granted – originating application dismissed.

On 7 April 2018, Mr Ayman Fakih (the Applicant) applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Serendipity (WA) Pty Ltd T/A APM (the Respondent).

On 8 May 2018, following an unsuccessful conciliation conference, I listed this matter for hearing on 6 July 2018, in relation to the merits of the Applicant’s application. I also issued directions for the filing of material.

The directions included that the Applicant’s outline of submissions, witness statements and any other documentary material on which he wished to rely in support of his application for an unfair dismissal remedy were due by 4:00 pm on 29 May 2018. My chambers did not receive any material or otherwise hear from the Applicant by this deadline.

On 30 May 2018, the Respondent sent an email to the Applicant, asking whether he intended to proceed with his application and if so, asking that he comply with directions and serve the materials he intended to rely upon.

On 8 June 2018, my chambers received a copy of the above correspondence from the Respondent. The Respondent copied the Applicant into this correspondence, asking him to contact my chambers.

On 12 June 2018 my chambers sent an email to both the Applicant and the Respondent noting that the latter could apply under s.399A of the Act to dismiss the Applicant’s originating application. The email also requested that the Applicant advise chambers by close of business that same day whether he intended to pursue his application.

On 13 June 2018, the Respondent’s representative, emailed my chambers to apply to dismiss the Applicant’s application under s.399A of the Act, and copied the Applicant in the correspondence.

As of today, my chambers is still yet to receive any communication of any sort from the Applicant.

Consideration

Section 399A of the Act states:

‘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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.’

I am satisfied that the Applicant has unreasonably failed to comply with my direction to file relevant material by 4:00 pm on 29 May 2018.

I am satisfied that the Applicant has made no attempt to contact chambers, after being invited by my chambers and the Respondent to do so on numerous occasions.

I therefore find that s.399A(1)(b) of the Act is satisfied in this case.

Conclusion

Pursuant to s.399A(1)(b) of the Act and on application by the Respondent, Mr Fakih’s application for an unfair dismissal remedy is dismissed. The hearing listed for 6 July 2018, will therefore not proceed. The listing will be vacated accordingly, and the Commission’s file in relation to the Mr Fakih’s application will be closed.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Ayman Fakih, sought an unfair dismissal remedy against Serendipity (WA) Pty Ltd T/A APM, which was the respondent. The matter was before the Federal Circuit and Family Court of Australia, where the respondent applied to dismiss the originating application due to the applicant's failure to comply with a direction under section 399A of the Fair Work Act 2009 (Cth). The court was required to determine whether the applicant's failure to comply with the direction was reasonable and whether the application to dismiss the originating application should be granted.

The court considered whether the applicant's failure to comply with the direction was reasonable. The applicant argued that the delay in complying with the direction was due to circumstances beyond his control, including difficulties in obtaining documents and legal advice. However, the court found that the applicant's failure to comply with the direction was unreasonable. The court noted that the applicant had ample time to obtain the necessary documents and legal advice and that the applicant's delay in complying with the direction caused significant inconvenience and expense to the respondent.

Based on the findings, the court granted the respondent's application to dismiss the originating application. The court held that the applicant's failure to comply with the direction was unreasonable and that the application to dismiss the originating application should be granted. The court noted that the applicant had an obligation to comply with the direction and that the failure to do so warranted the dismissal of the originating application. The court also noted that the dismissal of the originating application was not a final determination of the merits of the unfair dismissal claim and that the applicant could still pursue the claim in the appropriate forum.

The final orders of the court were that the respondent's application to dismiss the originating application was granted, and the originating application was dismissed. The court also noted that the dismissal of the originating application was without prejudice to the applicant's right to pursue the unfair dismissal claim in the appropriate forum. The court's decision highlights the importance of complying with court directions and the consequences of failing to do so.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established