Feodor Dostovaloff v Hume Doors & Timber (Vic) Pty Ltd

[2018] FWC 2971

[2018] FWC 2971

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Feodor Dostovaloff
v
Hume Doors & Timber (Vic) Pty Ltd
(U2018/2166)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 MAY 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 1 March 2018, Mr Feodor Dostovaloff 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). Mr Dostovaloff said that his employment had been terminated by Hume Doors & Timber (Vic) Pty Ltd (Hume Doors) on 13 February 2018.

[2] The matter was listed for conciliation on 27 March 2018. That morning, prior to commencement of the conciliation, the Commission received an email from Mr Dostovaloff’s representative as named on his Form F2 – Unfair Dismissal Application, Australian Dismissal Services, advising that it had been unable to contact Mr Dostovaloff either by telephone or email in the lead up to the conciliation. The conciliation could not proceed as Mr Dostovaloff could not be contacted at the relevant time.

[3] On 3 April 2018, Australian Dismissal Services filed a Form F54 - Notice of Representative Ceasing to Act advising they would no longer be acting as Mr Dostovaloff’s representative.

[4] On 17 April 2018, directions were issued by the Commission. Mr Dostovaloff was directed to file material in support of his application by no later than noon on 7 May 2018. Hume Doors was directed to file its material in opposition to the application by no later than noon on 28 May 2018. Mr Dostovaloff failed to file any material by noon on 7 May 2018.

[5] On 7 and 8 May 2018, the Commission attempted to contact Mr Dostovaloff by telephone regarding his failure to file submissions. Mr Dostovaloff did not answer the calls and the Commission was unable to leave a voicemail message. Following the call on 8 May 2018, email correspondence was sent to Mr Dostovaloff regarding his overdue submissions. This email advised that if the Commission did not receive his submissions or an extension request by noon on 9 May 2018, the matter would be listed for a non-compliance hearing on 11 May 2018.

[6] On 10 May 2018, the Commission again attempted to contact Mr Dostovaloff by telephone. Mr Dostovaloff did not answer and the Commission was unable to leave a voicemail message. On the same day, a Notice of Listing was sent to the parties by email and to Mr Dostovaloff’s nominated postal address confirming the scheduling of a non-compliance hearing on 11 May 2018.

[7] On 11 May 2018, a non-compliance hearing proceeded before Commissioner Wilson. Mr Dostovaloff could not be contacted for the hearing. Hume Doors made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Dostovaloff’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted Hume Doors’ oral application.

[8] Following the non-compliance hearing, correspondence was sent to Mr Dostovaloff’s nominated email and postal addresses advising him of Hume Doors’ s.399A application. Mr Dostovaloff was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 21 May 2018. This correspondence stated that if the Commission did not receive a response, Mr Dostovaloff’s application for relief from unfair dismissal would be dismissed. The letter was sent by express post which was confirmed to have been delivered to Mr Dostovaloff on 14 May 2018.

[9] To date, Mr Dostovaloff has not filed any material with the Commission.

[10] 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.

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Dostovaloff has failed to respond to numerous attempts made by the Commission to contact him. Other than engaging a representative to lodge his application, Mr Dostovaloff has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Dostovaloff’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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