Denis Kalanj v Pacific National Pty Ltd
[2024] FWC 2039
•31 JULY 2024
| [2024] FWC 2039 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Denis Kalanj
v
Pacific National Pty Ltd
(U2024/7246)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 31 JULY 2024 |
Application for an unfair dismissal remedy – applicant did not comply with directions – application dismissed
On 24 June 2024, Mr Denis Kalanj made an application (the application) to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Pacific National Pty Ltd (Pacific National) on 19 April 2024.
On 5 July 2024, Pacific National filed a Form F3 – Employer response to unfair dismissal application.
The application was made outside of the 21-day period prescribed by s.394(2) of the FW Act.
Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application. To determine whether there are exceptional circumstances, the factors in s 394(3)(a)-(f) of the FW Act are considered.
The matter was listed for a Directions hearing by Video using Microsoft Teams on 15 July 2024.
After hearing from the parties, my Chambers issued directions for the filing and serving of materials and listed the matter for hearing in relation to whether exceptional circumstances warrant granting an extension of time to file the application at 2:00pm on 31 July 2024 in person, in Sydney (the Directions).
At 3:11pm 22 July 2024, Mr Kalanj sent Chambers the following email without copying in Pacific National:
Outline for extension
Medical reasons. Pacific national has all my medical certificates that i sent every fortnight.
Evidence
Please ask pacific national to provide these certificates as evidence as i have no longer access to my emails
At 3:31pm 22 July 2024, my Chambers provided a response to Mr Kalanj, to the effect that if he required Pacific National to provide his medical certificates, Mr Kalanj could either ask Pacific National directly or apply to the Commission to issue an Order to Produce.
Mr Kalanj did not provide any material as required by the Directions at 4:00pm 22 July 2024 and did not apply for an extension of time to submit his material.
On 23 July 2024, my Chambers sent the parties the following email:
Dear parties,
I refer to the above matter.
It is noted that the Applicant was due to provide their material by 4:00pm yesterday, 22 July 2024. Chambers is not in receipt of the material or a request for an extension.
Deputy President Wright directs that the outstanding material is to be provided as soon as possible and by no later than 4:00pm tomorrow, 24 July 2024 along with the reason for the delay.
If the material is not provided, the Applicant should make a formal extension request in writing to Chambers outlining the reason for the delay and providing appropriate evidence to support the request for an extension.
At 5:31pm 24 July 2024, Pacific National requested that the application be dismissed in accordance with s. 399A of the FW Act.
At 10:50am on 25 July 2024, my Chambers sent the following email to the parties:
Dear parties,
I refer to the above matter and below correspondence.
As the Applicant has not complied with the attached Directions and has still failed to submit the material with the extension provided by Chambers at 2:58pm 23 July 2024 (attached), the matter will be listed for Hearing to determine whether the Application should be dismissed pursuant to s.399A of the Fair Work Act 2009 (Cth) at 2:30pm Tuesday, 30 July 2024.
Additionally, Pacific National is not required to comply with the attached Directions that were sent on 15 July 2024.
A Notice of Listing will be sent to the parties shortly.
The matter was then listed for Hearing at 2:30pm on 30 July 2024 to determine if the Application should be dismissed in accordance with s. 399A of the FW Act.
At 4:11pm on 29 July 2024, my Chambers sent the following email to the parties:
Dear parties,
I refer to the above matter and the below correspondence.
I am writing to clarify the email below regarding the Hearing at 2:30pm Tuesday, 30 July 2024. The purpose of this Hearing is to consider whether the Applicant’s application should be dismissed as he has not complied with the Directions.
I have attached the Notice of Listing again for the parties’ information.
Please note that the original hearing scheduled for 2:00pm Wednesday, 31 July 2024 in relation to whether the application should be accepted outside the 21-day time limit has been cancelled. A notice to this effect will be issued to the parties separately.
The parties are requested to contact Chambers regarding the listing tomorrow if they have any questions.
Mr Kalanj did not respond to this email. The hearing regarding dismissing the application pursuant to s. 399A of the FW Act proceeded as scheduled at 2:30pm on Tuesday, 30 July 2024.
My Chambers attempted to call Mr Kalanj twice at the commencement of the hearing on the phone number provided in the application, however Mr Kalanj did not respond to the phone calls and did not appear at the hearing listed on 30 July 2024. Pacific National pressed its application for Mr Kalanj’s application to be dismissed according to s. 399A of the FW Act. I dismissed the application at the hearing and now provide my reasons.
Section 399A of the FW Act provides as follows:
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.
I am satisfied that the Commission has taken reasonable and appropriate steps to inform Mr Kalanj of the Directions and hearing date, contact Mr Kalanj on the date of the hearing and inform Mr Kalanj of the consequences of failing to comply with the Directions.
In addition, I note that there is no material before me that addresses the matters in s 394(3).
In the circumstances, I am satisfied that Mr Kalanj has unreasonably:
(a) failed to attend a hearing held by the Commission, in relation to the application; and
(b) failed to comply with a direction of the Commission relating to the application.
I have therefore decided to dismiss the application pursuant to s. Section 399A(1) of the FW Act. I order accordingly.
DEPUTY PRESIDENT
Appearances:
No appearance for the Applicant.
R Wolstencroft for the Respondent.
Hearing details:
2024
July 30
By Video using Microsoft Teams
Printed by authority of the Commonwealth Government Printer
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