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

[2018] FWC 3461

[2018] FWC 3461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ayman Fakih

v

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.

1. 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).

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

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

Consideration

1. 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.’

1. 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.

1. 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.

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

Conclusion

1. 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

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