Daniel Dalli v Telstra Pty Ltd
[2021] FWC 5950
| [2021] FWC 5950 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Dalli
v
Telstra Pty Ltd
(U2021/5798)
| DEPUTY PRESIDENT EASTON | SYDNEY, 17 SEPTEMBER 2021 |
Application for an unfair dismissal remedy - s.399A application to dismiss - application granted.
Mr Dalli was notified of his dismissal on 15 April 2021 and the dismissal took effect on 9 June 2021. Section 394(1) of the Fair Work Act 2009 (“the Act”) requires Mr Dalli to make his application for an unfair dismissal remedy within 21 days after his dismissal took effect, being midnight on 30 June 2021. Mr Dalli did not make his application until 1 July 2021.
At a telephone directions hearing on 22 July 2021 Mr Dalli appeared for himself and Mr Small appeared on behalf of Telstra Pty Ltd (“Telstra”). A program was set to prepare the matter for hearing to determine Mr Dalli’s application for an extension of time, and the matter was listed for hearing on 16 August 2021.
Mr Dalli filed evidence and submissions in support of his application for an extension of time on 30 July 2021 and evidence and submissions in reply on 13 August 2021.
On 16 August 2021 Mr Dalli did not attend the hearing. Despite several attempts to contact Mr Dalli by telephone, text message and by email, he could not be reached. Three (3) representatives and witnesses for the Respondent attended the hearing. Mr Small did not press for the matter to be dismissed at the hearing, and kindly submitted that Mr Dalli could have a good reason for not attending the hearing and that he should be given an opportunity to explain why he could not attend.
The proceedings were adjourned and directions were sent by email for Mr Dalli to provide a written submission by 4:00pm on 17 August 2021 explaining his non-attendance and to indicate how he wished to proceed with his application. Mr Dalli did not respond to this email and did not provide any written submissions.
On 18 August 2021 Telstra indicated by email that “in light of Mr Dalli’s failure to attend the hearing (despite the many attempts to contact him on the 16th), and his subsequent failure to comply with [the Commission’s] direction to indicate that he wants to proceed, Telstra makes application for the matter to be dismissed under sections 399A(a) and (b) of the Act”.
On 24 August 2021 Telstra filed by email material in support of its application. The emails of 18 August 2021 and 24 August 2021 were sent to Mr Dalli.
Directions issued on 24 August 2021 required Mr Dalli to file with the Commission and serve on the Telstra any submissions he wished to make to address the s.399A dismissal application. Unfortunately the orders sent contained a typographical error and said that Mr Dalli’s materials were due on 3 October 2021. The Directions sent on 24 August 2021 by email were followed up by a telephone call and also an SMS to Mr Dalli on the same day. Mr Dalli accepted the telephone call and was told that an important email had been sent to him.
On 30 August 2021 amended directions were sent to the parties and clarified that Mr Dalli’s materials were due on 3 September 2021 rather than 3 October 2021. On 31 August 2021 an SMS was sent to Mr Dalli advising him of the corrected due dates. An invitation was sent to both parties to contact the Commission if the amended directions caused any prejudice or difficulty, and both parties were advised that adjustments to the directions could be made to meet any concerns.
Mr Dalli did not file any material by 3 September or at all. Telstra did not file any further evidence.
Section 399A of the Act provides:
“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.
…
(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.”
The relevant principles to consider Telstra’s application under s.399A were helpfully summarised in Lockyear v Graeme Cox [2021] FWCFB 875 at [57]:
“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. 14 Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute 15 and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”
In the s.399A application there are no facts in dispute that require the Commission to conduct a hearing to determine Telstra’s application (per s.397).
Section 399A(2) is obviously satisfied by the Respondent’s application. Similarly s.399A(1)(a) and (b) are satisfied by Mr Dalli’s failure to attend the hearing on 16 August 2021 and then his failure to comply with the subsequent procedural directions referred to the above. The jurisdictional pre-requisites are met for Mr Dalli’s application to be dismissed[1] and it is a matter of discretion whether I do so.
The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their ‘day in court’.[2]
Despite filing evidence Mr Dalli did not attend the hearing on 16 August 2021 to prosecute his application for an extension of time. Thereafter Mr Dalli has failed to respond to the numerous attempts to contact him. Many of the notices sent to Mr Dalli contained a warning that “If Mr Dalli does not file any submissions or material in relation to the s.399A application, the Commission will proceed to determine the application on the material before it, which may result in the dismissal of Mr Dalli’s claim for an unfair dismissal remedy.”
Telstra, like every respondent, is entitled to ask for some finality of the claim against it. Mr Dalli has been offered his ‘day in court’ and he has not taken up the opportunity provided to him. In the circumstances I see no utility in continuing Mr Dalli’s claim and therefore no reason to reject Telstra’s application under s.399A.
I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Dalli’s application. An order giving effect to this decision will be issued separately.
DEPUTY PRESIDENT
[1] Cf Lockyear v Graeme Cox [2021] FWCFB 875 at [55].
[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].
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