Everardo Vidal v Wheat Ridge Pty Ltd T/A Sunrise AG

[2018] FWC 4977

[2018] FWC 4977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Everardo Vidal
v
Wheat Ridge Pty Ltd T/A Sunrise AG
(U2018/6232)

COMMISSIONER WILSON MELBOURNE, 27 AUGUST 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 14 June 2018, Mr Everardo Vidal made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application, Mr Vidal stated that he was notified of his dismissal by Wheat Ridge Pty Ltd T/A Sunrise AG (Sunrise AG) on 14 May 2018 and that the dismissal took effect on 15 May 2018.

[3] On 22 June 2018, a Notice of Listing was sent to the parties scheduling a conciliation for 12 July 2018. Additional correspondence was also sent to the parties providing them information about the conciliation.

[4] The conciliation on 12 July 2018 could not take place as Mr Vidal was unable to be contacted despite a SMS reminder sent to him on 11 July 2018. Following this, the Commission sent correspondence to the parties advising that if a request for a further conciliation was not received within two working days, the matter would be referred for arbitration.

[5] On 13 July 2018, Sunrise AG responded to the Commission’s email advising that it wished to proceed to a further conciliation. However, as no response was received from Mr Vidal, the matter was subsequently referred for arbitration.

[6] On 26 July 2018, Sunrise AG emailed the Commission seeking confirmation as to whether Mr Vidal had discontinued his application. The Commission attempted to telephone Mr Vidal to discuss whether he intended on pursuing his matter but this was unsuccessful and a voicemail was left requesting his return call.

[7] Later the same day, a Notice of Listing was sent to parties scheduling an Extension of Time Conference/Hearing, by telephone, on 31 August 2018. Mr Vidal was directed to file his material by no later than noon on 3 August 2018 and Sunrise AG was directed to file its reply material by no later than noon on 10 August 2018.

[8] On 6 and 7 August 2018, two attempts to telephone Mr Vidal were made, both of which were unsuccessful. A voicemail was left on the first attempt, seeking Mr Vidal’s return call. Following the second attempt, where a voicemail was unable to be left, an email was sent to Mr Vidal advising that if he did not file his material or seek an extension for the filing of his material by 5:00pm the same day, his matter would be listed for a non-compliance hearing on 9 August 2018. The email further advised that Mr Vidal’s application may be dismissed as a result of the non-compliance hearing.

[9] On 8 August 2018, the Commission made a final attempt to telephone Mr Vidal. This was unsuccessful and a voicemail was left seeking his urgent return call. A Notice of Listing was subsequently sent to the parties scheduling the non-compliance hearing for 9 August 2018.

[10] The non-compliance hearing proceeded before Commissioner Bissett on 9 August 2018. Mr Vidal could not be contacted. Sunrise AG made an oral application pursuant to s.399A of the Act that the matter be dismissed as Mr Vidal had failed to comply with a direction of the Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Sunrise AG’s s.399A application.

[11] Following the non-compliance hearing, correspondence was sent to Mr Vidal, via email, informing him of Sunrise AG’s s.399A application. Mr Vidal was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 16 August 2018. The correspondence further stated that if the Commission did not receive a response, Mr Vidal’s application for relief from unfair dismissal would be dismissed.

[12] On 24 August 2018, a Notice of Listing was sent to the parties cancelling the Extension of Time Conference/Hearing scheduled on 31 August 2018.

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

[14] Section 399A of the 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 Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[16] As Mr Vidal did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Vidal has failed to respond to the many attempts made by the Commission to contact him. Apart from initially filing his application, Mr Vidal has shown no willingness to prosecute his case and has provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Vidal’s application.

[18] An order giving effect to this decision will be issued today.

COMMISSIONER

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