Byambasuren Shinebayar v Westmead Food & Beverage Pty Ltd T/A Zouki Westmead

[2017] FWC 1504

[2017] FWC 1504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Byambasuren Shinebayar
v
Westmead Food & Beverage Pty Ltd T/A Zouki Westmead
(U2017/585)

DEPUTY PRESIDENT DEAN SYDNEY, 17 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 19 January 2017 Mr Byambasuren Shinebayar (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Westmead Food & Beverage Pty Ltd T/A Zouki Westmead(the Respondent).

[2] The Respondent raised a jurisdictional objection to the application on the ground that the Applicant was engaged on the basis of ‘filler shifts’ and his employment was not regular or systematic.

[3] Following unsuccessful conciliation on 17 February 2017, directions were issued by the Commission on 27 February 2017 for the filing of an outline of submissions, witness statements and any other documentary material the Applicant wanted to rely upon. The matter was set down for a telephone mention on 3 March 2017, and for jurisdiction and arbitration hearing on 28 April 2017.

[4] On 3 March 2017, the Applicant did not attend the mention. Following unsuccessful attempts to contact the Applicant on the telephone number he had provided, the Respondent was advised that the mention could not take place.

[5] On 7 March 2017 correspondence was sent to the Applicant, by email and post to the addresses provided in the application, in the following terms:

“I refer to your application for unfair dismissal remedy under s.394 of the Fair Work Act 2009.

It is noted that you failed to attend the mention/conference listed on 3 March 2017 and several attempts made to contact you failed.

You are now required to contact our chambers by 4 pm on Tuesday 14 March2017 to confirm your intention to proceed with the application.

If no response is received from you by the above date, the matter will be listed for non-compliance hearing at which time the Deputy President may consider dismissing your application.”

[6] The Applicant did not respond to this correspondence.

[7] On 15 March 2017 the Respondent made an application pursuant to s.399A of the Act that the matter be dismissed on the basis that the Applicant failed to comply with directions and failed to attend the conference before the Commission. The Respondent also submits that the application should be dismissed pursuant to s.587 of the Act on the basis that the application is not made in accordance with the Act and has no reasonable prospects of success.

Relevant Legislation

[8] Sections 399A and 587 of the Act provide:

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.

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.

[9] The matter was listed for non-compliance hearing by telephone on 17 March 2017. The Applicant was notified of the hearing by both email and post. At the hearing, Ms M Hanna appeared for the Respondent. The Applicant was once again not contactable.

[10] The Respondent made short oral submissions which confirmed what it had included in its application to dismiss the Applicant’s unfair dismissal application.

Consideration

[11] The Applicant has failed to attend the mention/conference on 3 March 2017 and has failed to respond to correspondence from the Commission. There has been no request for an adjournment sought by the Applicant and he did not attend the non-compliance hearing today. I am satisfied that these failures are unreasonable and accordingly I have decided to dismiss the application pursuant to s.399A of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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