Barsham Bashir v Woolworths Ltd T/A Woolworths Mirrabooka

[2017] FWC 438

[2017] FWC 438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barsham Bashir
v
Woolworths Ltd T/A Woolworths Mirrabooka
(U2016/11658)

DEPUTY PRESIDENT BULL SYDNEY, 19 JANUARY 2017

Application for an unfair dismissal remedy - s.399A application

[1] On 22 September 2016, Mr Barsham Bashir (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been unfairly dismissed by Woolworths Ltd T/A Woolworths Mirrabooka (the employer).

Background

[2] The matter was listed for telephone conciliation on 9 December 2016 however the applicant was unable to be contacted. A voicemail was left on the applicant’s nominated phone number and an email was sent to the applicant requesting that the applicant contact the Commission regarding his absence at the conciliation conference. The Commission did not receive a response from the applicant and the matter was accordingly referred for formal proceedings on 15 December 2016.

[3] On 20 December 2016 the matter was listed for a directions teleconference to take place on 6 January 2017.

[4] The teleconference of 6 December 2017 was attended by the respondent’s representatives from the Chamber of Commerce and Industry of Western Australia. The applicant did not attend the teleconference and did not notify the Commission that he would not be attending. A voicemail was left on the applicant’s telephone by my associate at the time of the conference, requesting the applicant contact my Chambers.

[5] The respondent advised at the teleconference that it had understood that it an in-principle agreement had been reached between the parties; however since that time the respondent had made multiple attempts to contact the respondent with no success.

[6] On 6 January 2017, following the teleconference an email was sent to the applicant referring to the teleconference and directing the applicant to contact the Commission by close of business 13 January 2017. The Commission advised that if a written response was not received the applicant risked his application being dismissed.

[7] On 9 January 2017, the employer lodged an application pursuant to s.399A of the Act that the matter be dismissed on the basis that the applicant had failed to attend two conferences conducted by the Commission. A copy of that application was served on the applicant.

[8] As at the date of this decision the applicant has not responded as directed by the Commission nor has he otherwise contacted the Commission regarding this application.

Legislation

[9] 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.

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.

Decision

[10] As a consequence of the applicant’s failure to attend the directions conference listed in this matter and to provide a response to the Commission as directed, the Commission can only conclude that the applicant does not wish to pursue his application. The application for an unfair dismissal remedy, at the request of the employer, will be dismissed in accordance with s.399A of the Act. An order [PR589578] dismissing the application is published separately.

DEPUTY PRESIDENT

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