David Garang v Olympic Aluminium Co Pty Ltd

[2019] FWC 6989

[2019] FWC 6989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Garang
v
Olympic Aluminium Co Pty Ltd
(U2019/7772)

COMMISSIONER BISSETT MELBOURNE, 11 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 15 July 2019, Mr David Garang (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Olympic Aluminium Co Pty Ltd (Respondent) on 4 July 2019.

[2] The matter was listed for conciliation on 16 August 2019 however the matter was not resolved.

[3] On 6 September 2019, directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 28 – 30 October 2019. The Applicant was directed to file his material by no later than noon on 25 September 2019. No such material was received.

[4] On 26 September 2019, the Commission made an attempt to telephone the Applicant to discuss his failure to file his material by the required date. A voicemail message was left. On the same date the Commission emailed correspondence to the Applicant’s nominated email address regarding his failure to file his material by the required date. The Applicant was asked to advise the Commission by 10:00am on 30 September 2019 when he intended to file his submissions. The Applicant failed to respond to the Commission’s correspondence.

[5] At 12:30pm on 30 September 2019, the Commission attempted to call the Applicant regarding his overdue material. The Applicant did not answer the call and a voicemail message was left reminding him of the overdue material and requesting a return call. The Applicant failed to return the Commission’s call.

[6] At 12:36pm on 30 September 2019, the Commission emailed correspondence to the Applicant with regards to his overdue material. He was requested to contact the Commission by 10:00am the next day to advise when he intends to file submissions. The correspondence stated that if the Commission did not receive a response, his matter was at risk of being listed for a Non-Compliance Hearing on 4 October 2019.

[7] On 2 October 2019, as no response from the Applicant had been received by the Commission, a Notice of Listing was issued to the parties scheduling a Non-Compliance Hearing for 4 October 2019.

[8] The Non-Compliance Hearing proceeded before Commissioner Harper-Greenwell on 4 October 2019 at 10:00am. The Applicant could not be contacted. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with directions of the Commission. Commissioner Harper-Greenwell waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[9] At 10:37am on 4 October 2019, following the Non-Compliance Hearing, the Applicant called the Commission and spoke with the Unfair Dismissal Case Management Team. The Applicant was advised that the Non-Compliance Hearing had taken place in his absence. The Applicant advised he was working during the Non-Compliance Hearing. The Applicant was advised he will receive correspondence requesting submissions on why he had failed to comply with the directions of the Commission and why his application should not be dismissed.

[10] At 12:50pm on 4 October 2019, following the Non-Compliance Hearing, correspondence was sent to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00 pm on 8 October 2019. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice

[11] At 9:04am on 5 October 2019, the Applicant emailed the Commission advising that he was at work at the time of the Non-Compliance Hearing, that he was not sick so he could not provide a medical certificate and that he is waiting for the outcome of his case as he has provided all the detail in his application.

[12] At 10:02am on 8 October 2019, the Applicant called the Commission and spoke with the Unfair Dismissal Case Management Team. The Applicant advised he has received correspondence stating we have not heard from him however he has filed his application and is waiting for a decision. The Applicant advised the letter he received required submissions by 4.00 pm on 8 October 2019 however he will be at work at that time. The Applicant was advised that he was directed to file submissions on his application as the matter was listed for Conference/Hearing. The Applicant was advised that the Commission was attempting to contact him as he had not provided those submissions. The Applicant was advised that the correspondence sent on 4 October 2019 requested information about why his application should not be dismissed due to his failure to file submissions.

[13] To date, the Applicant has not filed any material with the Commission.

[14] Section 399A of the FW 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.

....

(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.

[15] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has provided no explanation to the Commission for his failure to comply with the directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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