Elvedin Banus v Just Skip Bins Pty Ltd

[2019] FWC 2150

[2019] FWC 2150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Elvedin Banus
v
Just Skip Bins Pty Ltd
(U2019/272)

COMMISSIONER RIORDAN SYDNEY, 18 APRIL 2019

Application for an unfair dismissal remedy.

[1] Mr Eddie Banus (the Applicant) made application for an unfair dismissal remedy on 8 January 2019, claiming that he had been unfairly dismissal by Just Skip Bins Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 12 July 2018.

[3] The Respondent has raised a jurisdictional objection to the Applicant’s application claiming that it is a small business employing only 12 employees, thereby invoking the 1 year minimum employment period in section 383(b) of the Fair Work Act, 2009 (the Act). The Respondent claims that the Applicant cannot bring an unfair dismissal application because he was only employed for 6 months.

[4] The application was set down for Conference and Directions on 14 February 2019. The Applicant failed to appear.

[5] Correspondence was sent to the Applicant on 14 February 2019, advising him that he had 7 days to provide a written response as to why the Applicant had failed to attend the Conference.

[6] The Applicant contacted my Associate after receiving a phone message earlier that day enquiring about his attendance at the Commission. The Applicant was advised to read the email that had been sent to him and respond within 7 days and that failure to respond may result in his application being dismissed. The Applicant did not provide a written response to the Commission.

[7] On 1 April 2019, my Associate once again attempted to contact the Applicant in relation to the reasons for his non-attendance. The Applicant provided a written response later that day which said:

“To whom may concern I apologise I didn’t attend 14th of February for the mediation Because I had 12 days of court for my kids in district court with child protection and just skip bins know about I thought is on the 18th of February can you please organise a new date for a mediation I apologise for this I have court again on the 18th of April sorry for the delay thank you.”

[8] The Respondent has made an application in accordance with section 399A of the Act for the Commission to dismiss the application, on the basis that the Applicant did not respond within 7 days of failing to attend the Conference on 14 February 2019, that the application has no merit and that the Applicant cannot overcome the Respondent’s jurisdictional objection.

[9] Section 399A of the Act provides the following:

“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.

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.”

[10] The Applicant responded to this application on 9 April 2019:

“Dear whom may concern 

I apologise again I had too much stress about court case regarding about my children please understand I had too much pain also about my back just skip bins didn’t give me help with my treatments and just skip bins know about my court case regarding my children and just skip bins try to denied about how they treat the workers and they use section 399a and that’s not fair they didn’t want to help me with treatment at all is not fair work.”

Conclusion

[11] I am not satisfied that the Applicant has provided a reasonable excuse for not attending the FWC Conference on 14 February 2019. The Applicant was then given until 21 February 2019 to provide a satisfactory reason for his non-attendance. The Applicant only responded to the Commission’s correspondence after my Associate tried to contact him again on 1 April 2019, some 6 weeks after the initial Conference.

[12] The Applicant claimed that he was dealing with a matter in the Family Court and that matter had his full attention. Whilst I understand the importance of any proceeding in the Court, the Commission cannot simply sit idle whilst the Applicant decides when he might pay some attention to his unfair dismissal application.

[13] The Applicant’s lack of attention to his application cannot be condoned. Due to the Applicant’s failure to attend the Conference on 14 February 2019 and the Applicant’s failure to provide a reason for his non-attendance within the allocated timeframe, I have decided to dismiss the Applicant’s application for an unfair dismissal remedy in accordance with section 399A(1)(a) and (b) of the Act.

[14] I so Order.

COMMISSIONER

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