Huynh Phong v Chiropedic Bedding Pty Ltd

[2020] FWC 1093

[2020] FWC 1093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Huynh Phong
v
Chiropedic Bedding Pty Ltd
(U2019/13209)

COMMISSIONER BISSETT MELBOURNE, 2 MARCH 2020

Application for an unfair dismissal remedy.

[1] On 26 November 2019 Mr Huynh Phong (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Chiropedic Bedding Pty Ltd (Respondent) on 12 November 2019.

[2] On 10 December 2019 a Notice of Listing was issued to the parties scheduling a telephone conciliation on 24 December 2019.

[3] Later that day, following an adjournment request from the Respondent, an amended Notice of Listing was issued to the parties rescheduling the telephone conciliation to 9 January 2020.

[4] The conciliation listed for 9 January 2020 could not proceed due to the unavailability of the Applicant.

[5] On 9 January 2020 the Commission emailed correspondence to the Applicant’s representative later advising that if the Applicant wished the matter to be relisted for conciliation he was required to request this in writing within 2 days. After that time the matter would be referred to be listed for arbitration before a Member of the Commission.

[6] On 20 January 2020, as no reply from the Applicant was received, the matter was referred to be listed for Arbitration Conference/Hearing. Directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 25 – 27 March 2020. The Applicant was directed to file his material by no later than noon on 10 February 2020. No such material was received.

[7] On 10 February 2020 the Commission attempted to contact the Applicant and his representative on their respective nominated telephone numbers. Both telephone calls could not be connected and a voicemail message could not be left.

[8] Later that day the Commission emailed correspondence to the Applicant and his representative advising that the Applicant’s material was overdue and requesting that the Applicant contact the Commission to advise when he intended to file his submissions. That correspondence also advise that the Applicant could make a written request for an extension to file submissions. No such request was received.

[9] On 11 February 2020 the Commission attempted to contact the Applicant on his nominated mobile telephone number. The call could not be connected and a voicemail message could not be left.

[10] Later that day the Commission emailed further correspondence to the Applicant and his representative advising that the Applicant’s material was overdue and requesting that he file his material or make a request for an extension to file materials. That correspondence also advised that the matter was at risk of being listed for a Non-Compliance Hearing on 14 February 2020. A SMS message was also sent to the Applicant’s nominated mobile telephone number advising that the Commission had sent an email to his nominated email address regarding his unfair dismissal matter.

[11] On 12 February 2020, as no response was received from the Applicant or his representative, a Notice of Listing was issued to the parties scheduling a Non-Compliance Hearing for 14 February 2020. The Notice of Listing advised that the Applicant should provide the Commission with a contact telephone number otherwise he would be contacted on his nominated mobile telephone number. The Notice of Listing also advised that the Applicant was required to attend the Non-Compliance Hearing and that the hearing could result in the dismissal of his application.

[12] The Non-Compliance Hearing proceeded before Commissioner Bissett on 14 February 2020. Neither the Applicant nor his representative attended. The Commission attempted to contact the Applicant twice on his nominated telephone number but the number rang twice and then disconnected. There was no opportunity to leave a voicemail. The Commission attempted to contact the Applicant’s representative on their nominated telephone number twice but the call could not be completed. The Respondent’s representative made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the directions of the Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[13] On 14 February 2020, following the Non-Compliance Hearing, correspondence was sent to the Applicant’s and his representative’s nominated email address and by express post to the Applicant’s nominated postal address advising of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00pm on 21 February 2020. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[14] To date, the Applicant has not filed any material with the Commission.

[15] Section 399A of the FW 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.

[16] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant 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. The Applicant has failed to respond to numerous attempts made by the Commission to contact him. The Applicant and has not provided an explanation to the Commission for his failure to comply with the directions of the Commission issued on 20 January 2020 or his failure to attend the Non-Compliance Hearing on 14 February 2020.

[18] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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