Ivan Steko v The Reserve Bank of Australia T/A the Reserve Bank of Australia

[2017] FWC 5546

[2017] FWC 5546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ivan Steko
v
The Reserve Bank of Australia T/A The Reserve Bank of Australia
(U2017/6781)

DEPUTY PRESIDENT BOOTH SYDNEY, 25 OCTOBER 2017

Application for an unfair dismissal remedy s. 399A – application dismissed.

[1] The Applicant, Mr Ivan Steko, made an application to the Fair Work Commission (the Commission) pursuant to s. 394 of the Fair Work Act 2009 (the Act) on 23 June 2017 alleging he had been unfairly dismissed by the Reserve Bank of Australia (the RBA).

[2] A telephone conciliation in the matter was listed before a Commission conciliator on 15 August 2017. However on 14 August 2017 Mr Steko wrote the Commission requesting the rescheduling of the conciliation as he was unwell and had experienced a deterioration in his health since his dismissal.

[3] Mr Steko’s adjournment request was granted and the conciliation was relisted to take place on 29 August 2017. However that conciliation did not proceed as Mr Steko could not be contacted at the listed time. According to Commission process, the matter was then moved to me.

[4] On 4 September 2017 I issued a notice of listing for Mention by Telephone on 13 September 2017, and Arbitration on 27 October 2017. I also issued Directions requiring material to be filed by Mr Steko by 25 September 2017, with material from the RBA in reply due by 16 October 2017.

[5] Although several calls were made by my chambers to Mr Steko at the time of the Mention on 13 September 2017, and a voice mail was left, he was not able to be contacted. Mr Gerald Richardson, who appeared on behalf of the RBA at the Mention, was advised by my chambers that the mention was not able to proceed without the appearance of Mr Steko.

[6] On 18 September 2017 the RBA made an application for the matter to be dismissed pursuant to s. 399A of the Act.

[7] 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.”

[8] The application by the RBA was made on the basis that Mr Steko had failed to participate, without notice, in both the conciliation conference on 29 August 2017 and the Mention on 13 September 2017, and that it was ‘improbable’ Mr Steko would comply with the Directions issued.

[9] I advised the parties that I would consider the s. 399A application in the event that Mr Steko failed to comply with the directions timetable.

[10] Mr Steko did not file any material by 25 September 2017. On 28 September 2017 my chambers wrote to Mr Steko noting he had not filed any material and requesting he advise as soon as possible when the outstanding material would be filed. No response has since been forthcoming and no material has been filed by Mr Steko to date.

[11] On 11 October 2017 the RBA made a further application for the matter to be dismissed pursuant to s. 399A of the Act. The RBA relied on the same grounds on which their previous application had been made, as well as noting that Mr Steko had failed to comply with the directions timetable and had not responded to the correspondence from my chambers on 28 September 2017.

[12] On 12 October 2017 I directed my chambers to write to Mr Steko noting the further application made by the Respondent and advising him should he wish to provide a response to the Respondent’s application, this should be received by no later than Wednesday, 18 October 2017. No correspondence has been received from Mr Steko in response to that email.

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

[14] As Mr Steko did not make any contact or file any material in opposition to the application to dismiss his application for unfair dismissal remedy, I decided to determine the application on the papers.

[15] Overall, there has been no participation by, or contact from, Mr Steko in relation to his unfair dismissal application for more than two months. I note that he has been contacted by my chambers by both telephone and email at various times over a period of more than 6 weeks, and has made no attempt to engage in the Commission’s process relating to the application he has made.

[16] I note that no explanation at all has been provided by Mr Steko as to why he has failed to participate in listings or file material. I note that although he did indicate to the Commission in the earlier stages of his application that he had been unwell, he has made no subsequent attempt to bring any similar concerns to my attention.

[17] In these circumstances I am satisfied that Mr Steko unreasonably failed to participate in the Mention in this matter, and unreasonably failed to comply with the Directions issued on 4 September 2017. I find that both s. 399A(1)(a) and (b) of the Act are therefore satisfied.

[18] Section 399A(2) is satisfied in that Mr Steko’s former employer, the RBA, has made the application for dismissal of the matter.

[19] I consider the Commission’s power to dismiss an application for an unfair dismissal remedy is enlivened by the satisfaction of s.399A(1) (a) and (b) and (2). In all the circumstances I have decided to exercise my discretion to dismiss Mr Steko’s application.

[20] Accordingly Mt Steko’s unfair dismissal application is dismissed. An Order PR597107 to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR597105>