Dung Thanh Truong v Dowell Windows Pty Ltd

[2022] FWC 2675

[2022] FWC 2675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dung Thanh Truong
v

Dowell Windows Pty Ltd

(U2022/6122)

DEPUTY PRESIDENT DOBSON BRISBANE, 5 OCTOBER 2022

Application under s.399A – applicant’s failure to comply with directions – no explanation for failure – application dismissed.

1. This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by Dowell Windows Pty Ltd (Respondent) to dismiss an unfair dismissal application brought against it by Mr Dung Thanh Truong (Applicant).

1. On 25 August 2022, this matter was allocated to my Chambers following multiple unsuccessful attempts of the Commission to conciliate the matter due to the Applicant failing to be contactable during the listed times.

1. On 26 August 2022, I issued directions requiring the Applicant (and the Respondent) to file materials and for a case management conference to occur at 2:00 pm on Monday 5 September 2022. The case management conference was subsequently relisted to occur at 2:00 pm on 15 September 2022 and a Vietnamese interpreter was arranged to assist the Applicant, as was the case for the previously listed conciliations.

1. On 7 September 2022, the Applicant requested to change the date of the conference to 19 September 2022 because he was working on the 15^th, however, he was informed that due to existing scheduling conflicts, the matter remained as listed for the 15^th and he was required to attend by telephone.

1. On 15 September 2022, the Applicant did not attend the case management conference despite my Associate making numerous attempts to contact him on his nominated phone number. The interpreter left a voice message in Vietnamese on the Applicant’s phone, advising the Applicant that the Commission had attempted to contact him for the conference and to call Chambers back urgently. The conference was stood down for 30 minutes to allow time for the Applicant to contact my Chambers but he did not do so. Accordingly, the case management conference could not take place.

1. On 16 September 2022, in accordance with the directions, the Applicant was required to file material in support his unfair dismissal application, but he did not do so.

1. On 19 September 2022, my Chambers wrote to the Applicant by email regarding his failure to attend the conference and to file his materials. The Applicant was directed to advise the Commission if he wished to proceed with the matter, and if so, provide his reasons why he did not comply with the directions by 4:00 pm on 21 September 2022.

1. On 20 September 2022, my Chambers wrote to parties by email advising the parties that the matter had been listed for a non-compliance hearing at 2:00 pm on Wednesday, 28 September 2022.

1. On 21 September 2022, my Chambers did not receive a response from the Applicant as required by the correspondence of 19 September 2022.

1. On 23 September 2022, the Respondent filed, by way of a Form F1, an application to dismiss the Applicant’s unfair dismissal application pursuant to s.399A(2) of the Act.

1. Also on 23 September 2022, my Chambers wrote to the Applicant by email, directing him to file any submission he wished to make in relation to the dismissal application by 4:00 pm on Monday 26 September 2022. That email provided that if he filed a response, the Respondent would be afforded the opportunity to reply however if no response was received from him, I intended to determine the dismissal application on the papers.

1. On 26 September 2022, my Chambers did not receive a response from the Applicant as required by the correspondence of 23 September 2022.

1. On 27 September 2022, my Chambers again wrote to the Applicant by email advising him that as he did not file a response the dismissal application would be determined on the papers and cancelling the non-compliance hearing listed for 2:00 pm on Wednesday, 28 September 2022.

1. Also on 27 September 2022, the Applicant replied to my Chambers advising that he was busy working and asking for the matter to be moved to next Monday (being the Queen’s Birthday Public Holiday).

1. On 30 September 2022, my Chambers again wrote to the Applicant by email setting out the history of his non-compliance in as simple terms as possible, including a statement translated in Vietnamese urging the Applicant to seek assistance with translating the correspondence to ensure that he properly understood his position. This correspondence provided that the Applicant was to tell the Commission by 4:00 pm on Tuesday, 4 October 2022:

   (a)   why he has not attended the previous conferences;

   (b)   why he did not file materials as required by the directions; and

   (c)   why his case should not be dismissed as a result of his failure to participate in the conferences and file his materials.

1. The Applicant did not file a response as required.

1. Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s.399A(1)(b)). I am satisfied that the Applicant unreasonably failed to comply with the requirement to attend the previously listed conferences and to file his materials in accordance with the directions. I consider that the failure was unreasonable for the following reasons:

(A)The Applicant has repeatedly failed to offer any reasonable explanation for his failure to comply with the directions or attend the listed conferences.

(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress his non-compliance but has failed to do so.

1. My discretion to dismiss the Applicant’s unfair dismissal application under s.399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for his failure to comply with my directions and the fact that he has persisted in failing attend the listed conferences, to file his materials, or to respond to directions seeking explanations for such failures. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application. The Respondent is entitled to understand the case that is put against it in good time so that it may properly respond. This is a matter of basic fairness.

1. For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.399A.

1. Pursuant to s.399A, the Applicant’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR746493>