Claude Mpinda v Western Areas Ltd T/A Western Areas
[2024] FWC 3326
•2 DECEMBER 2024
[2024] FWC 3326
The attached document replaces the document previously issued with the above code on 2 December 2024
Summary catchwords have now been updated
Associate to Deputy President O’Keeffe
Dated 6 December 2024
| [2024] FWC 3326 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Claude Mpinda
v
Western Areas Ltd T/A Western Areas
(U2016/11834)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 2 DECEMBER 2024 |
Applicant failed to attend conference and failed to comply with directions - application dismissed pursuant to s.399A of the Act
Mr Claude Mpinda (the Applicant) originally applied to the Fair Work Commission (FWC) for an unfair dismissal remedy in 2016, alleging he had been unfairly dismissed from his employment with Western Areas Ltd t/a Western Areas (the Respondent). In December of that year the FWC closed its file on the Applicant’s application on the basis that it had been told the parties had reached an in-principle agreement to settle the matter.
Some years later, Mr Mpinda filed an action in the Federal Court alleging that his matter had never been settled. Without traversing the entirety of the proceedings in the Federal Court, on 28 June 2024 the Federal Court found that Mr Mpinda’s 2016 FWC application had not been settled or withdrawn and was still on foot. The FWC undertook to the Federal Court that the matter would be re-issued to a member of the FWC who would then deal with the application using the usual processes employed by the FWC. The Federal Court accepted this and proposed to conduct a case management conference for the matter before it in February 2025 to allow the FWC time to process Mr Mpinda’s unfair dismissal application.
The 2016 application was allocated to my Chambers on 23 September 2024. On 1 October 2024 my Chambers issued a notice of listing and directions for a conference to be held on 18 October 2024 and a hearing – if needed – to be held on 22 November 2024. Also included were the parties’ initial application and response forms. On 3 October 2024 the Respondent filed a Form F53 with my Chambers seeking to be represented by Minter Ellison. On 7 October 2024 the Respondent provided Chambers with a copy of an email sent to them by the Applicant, presumably in response to the filing of the F53. The email read as follows:
“To Whom It May Concern,
I am writing to formally express my opposition to the respondent's recent action of filing Form 53 and referring the matter back to the Fair Work Commission.
As you are aware, the Federal Court has already issued a judgment on June 28, 2024, acquitting the respondents and resolving the main liability issues in my case. I am currently in the process of appealing this decision, and the appeal is pending before the Federal Court.
Given these circumstances, it is inappropriate and inadmissible for the Fair Work Commission to take over this matter while it is under appeal. The Commission is a party to the proceedings, and its involvement at this stage would undermine the integrity of the appeal process and my interests.
I respectfully request that the Fair Work Commission refrain from taking any further action on this matter until the appeal has been resolved by the Federal Court.
Thank you for your understanding and cooperation.
Sincerely,
Claude Mpinda”
As it appeared that the Applicant may have been uncertain as to the intentions of the FWC, on 10 October 2024 I sent the parties an email as follows, attaching the reasons for decision issued by the Federal Court and a further copy of our directions:
“Deputy President O'Keeffe notes the reasons for decision in matter [2024] FCA 1179 (as attached), which were published on Wednesday, 9 October 2024. Consistent with the undertakings given by the Fair Work Commission, Mr Mpinda's unfair dismissal claim U2026/11834 will be dealt with by the Commission.
The matter remains allocated to the Deputy President's Chambers and the directions issued on 1st October 2024 remain in place (see attached). As such, there will be a conciliation conference held at 8.00am (AWST) on Friday 18th October 2024 and, if required, a hearing of the matter on 22nd November 2024.
In the interim, can Mr Mpinda please advise by 4.00pm (AWST) Monday 14th October 2024 as to whether he will need a French interpreter for the conference and for the hearing.”
The Applicant did not respond to this email, and he failed to attend the conciliation conference despite attempts to reach him by telephone on the day. Given this, my Chambers emailed him on 18 October 2024 as follows:
“Dear Mr Mpinda,
Deputy President O’Keeffe notes that you failed to attend this morning’s conciliation conference. Attempts were made to contact you by telephone, but your phone diverted to voicemail.
The purpose of the conciliation conference was to explore the possibility of settling of your unfair dismissal claim lodged in 2016. As we previously advised you, the Federal Court has ruled that your claim was never settled or withdrawn and as such is still “live” in the Fair Work Commission’s system.
The Federal Court has scheduled a case management hearing for your case in that court which is to be held on 5 February 2025. The reason the Federal Court scheduled its case management hearing at that time was to allow the Fair Work Commission to deal with your unfair dismissal claim using its normal processes. The Fair Work Commission gave an undertaking to the Federal Court that it would do this.
The Federal Court is expecting the Fair Work Commission to report back – prior to 5 February - that it has dealt with your unfair dismissal claim using its usual processes.
It is for this reason that a conciliation conference was scheduled. You will note that the matter has also been listed for a formal hearing before the Fair Work Commission on 22 November 2024. This formal hearing was listed so that Deputy President O'Keeffe could decide the matter if the parties could not settle it in conciliation.
At this time, the Deputy President still believes that a conciliation conference would be an appropriate first step in dealing with your claim. For that reason, he is seeking your advice as to whether you will attend a conciliation conference if another one is scheduled in the next two weeks. Please be advised that we can arrange for French translation services to be available for you at the conference.
Can you please advise by return email, to be received no later than 4.00pm (AWST) Monday 21st October 2024, as follows:
1. Are you prepared to attend a conciliation conference to discuss possible settlement of your unfair dismissal claim?
2. If you are prepared to attend, are there any days on the week beginning November 4 where you are not available?
3. If you are not prepared to attend a conciliation conference, is it your intention to attend the hearing scheduled for 22 November 2024?
On 24 October 2024 my Associate rang Mr Mpinda and left a message on his voicemail as follows:
“Good morning Mr Mpinda,
My name is Sophie I am calling from the Fair Work Commission.
I am calling in regarding to your unfair dismissal application U2016/11834.This matter is allocated to Deputy President O'Keeffe. The Deputy President has sent several emails requiring a response. If you are not receiving these emails can you please inform the commission by emailing chambers.o'[email protected].
If you are receiving these emails the latest email requires a response by no later than 1pm Friday 25 October.
Thank you"
No response was received from the Applicant by 1pm on 25 October 2024. Given this, my Chambers sent the following email on 29 October 2024:
Dear Mr Mpinda,
Deputy President O'Keeffe refers you to previous items of correspondence wherein you were asked to explain your intentions with respect to your unfair dismissal claim number U2016/11834. To date you have not responded to any of those emails, nor have you responded to messages left on your phone.
The initial directions issued by the Deputy President listed a merits hearing of your case for 22 November 2024. As part of the process of hearing your claim, you were required to provide written submissions and evidence to Chambers by no later than 4.00pm (AWST) Friday 25th October 2024. No material has been received.
Accordingly, parties are advised as follows:
1. The initial directions issued for the hearing on 22 November 2024 are revoked; and
2. The hearing scheduled for 22 November 2024 is cancelled.
The Deputy President again asks that you make contact with Chambers to explain your intentions with respect to your claim. Such contact should be received no later than 4.00pm (AWST) Wednesday 30th October 2024. If you no longer wish to pursue your claim you can email Chambers and simply state that you wish to withdraw claim number U2016/11834.”
No response was received from the Applicant. On 14 November 2024 the Respondent – as it had foreshadowed – made an application under s.399A of the Act to have me dismiss the Applicant’s claim on the basis that he had failed to attend a conference and had failed to comply with directions.
I then arranged for a letter outlining the application to dismiss and the situation with his claim to be translated into French and emailed to the Applicant, along with the same letter in English and a copy of the application to dismiss. I also confirmed his residential address from the Federal Court proceedings and sent the same letter – again in French and with the dismissal application and an English version - to his house via registered mail. Confirmation that the letter was delivered was received by my Chambers. The English version of the email / letter that was sent is as follows:
Dear Mr Mpinda,
The Fair Work Commission has sent a number of emails to you and left a number of telephone messages regarding your unfair dismissal claim number U2016/11834. To date, you have not responded to any of our communications with you. You also failed to attend a conciliation conference which was scheduled for Friday 18th October and failed to comply with directions to file your submissions and evidence.
In our previous emails we have advised you that the Federal Court is expecting the Fair Work Commission to deal with your unfair dismissal claim using its usual processes. We also advised you that if you continued to ignore our communications it may lead to the Respondent (Western Areas Ltd) making an application to have your application dismissed on the basis that you have failed to attend a conference in relation to your application and failed to comply with a direction of the FWC relating to the application.
Western Areas Ltd have now made such an application and are asking the Deputy President to dismiss your application. Before making a decision on whether your application should be dismissed, the Deputy President wants to offer you one last opportunity to continue with your application. If you want to continue with your application, you must:
1. Contact Chambers by return email no later than 25th November 2024 and advise us that you want to continue with your claim; and
2. Provide a written response to the Respondent’s application under s.399A and the matters raised by the Respondent in its application.
Please be aware that if you do not reply by the above date, the Deputy President will decide the Respondent’s application without any further correspondence to you and may decide to dismiss your application.”
No response was received from the Applicant.
The application made by the Respondent is to have the Applicant’s unfair dismissal application dismissed pursuant to s.399A of the Act on the basis that the Applicant has failed to attend a conference conducted by the FWC and has failed to comply with a direction of the FWC. Under s.399A, the FWC has the power to make such an order on application by the employer if it is satisfied that an 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.
In this instance, I am satisfied that the Applicant has been contacted repeatedly to advise him of the FWC’s requirements, listings and concerns, and has been repeatedly asked to respond. Despite this, he has failed to respond on every occasion. As such, I am satisfied that his failure to attend a listed conference and his failure to comply with directions issued by the FWC has been unreasonable. In these circumstances, his application should be dismissed and an order to that effect will issue.
DEPUTY PRESIDENT
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