Ives Corrales v The Trustee for Rapid Labels

[2020] FWC 5100

[2020] FWC 5100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ives Corrales
v
The Trustee for Rapid Labels
(U2020/8738)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 23 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 24 June 2020, Mr Ives Corrales made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). Mr Corrales identifies The Trustee for Rapid Labels as the respondent to the application.

[2] The matter was conciliated on 20 July 2020, however it did not resolve.

[3] On 31 July 2020, directions were issued for the filing of material ahead of an arbitration hearing schedule for 5 October 2020. Mr Corrales was directed to file an outline of argument, statement(s) of evidence and a document list by 19 August 2020.

[4] In the absence of compliance, the Commission telephoned Mr Corrales on 24 August 2020. During the call, Mr Corrales was advised that he had failed to comply with the Commission’s directions and in response he advised that he was stepping into an appointment and could not further discuss the matter. A further two telephone calls were made to Mr Corrales later the same day to discuss his non-compliance. Neither call was answered and there was no option to leave a voicemail message.

[5] On 25 August 2020, a further telephone call was made to Mr Corrales. An automated message advised that his mobile service was unavailable. Later that day, an email was sent to the parties advising that the matter would proceed to a non-compliance hearing by telephone at 16:15 on 31 August 2020.

[6] On the morning of the non-compliance hearing, two telephone calls were made to Mr Corrales seeking to confirm his attendance. Neither call was answered and there was no option to leave a voicemail message.

[7] Notwithstanding that six telephone calls were made to Mr Corrales immediately prior to the commencement of the non-compliance hearing, Mr Corrales failed to attend.

[8] At the non-compliance hearing, the respondent made an application pursuant to s.399A of the Act that the matter be dismissed based on Mr Corrales’ non-compliance and failure to attend the telephone hearing. I waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application made by the respondent.

[9] Relevantly, s.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.”

[10] A letter dated 31 August 2020 was subsequently sent to Mr Corrales by email and express post. Broadly, the letter explained the history of the application in the Commission as it related to Mr Corrales’ non-compliance. The letter further advised that the respondent sought that Mr Corrales’ application be dismissed pursuant to s.399A of the Act. In light of these matters, Mr Corrales was directed to file with the Commission and serve on the respondent an explanation as to why the Commission should not dismiss his application for unfair dismissal remedy. This material was required by 9 September 2020, failing which the application would likely be dismissed.

[11] No material was received from Mr Corrales on 9 September 2020 or subsequently.

Conclusion and disposition

[12] Having regard to the application made by the respondent and given the Commission’s repeated attempts to engage with Mr Corrales, I am satisfied that Mr Corrales has unreasonably failed to (1) comply with the Commission’s directions and (2) attend a hearing held by the Commission.

[13] Accordingly, Mr Corrales’ application for unfair dismissal remedy is dismissed pursuant to s.399A(1) of the Act.

DEPUTY PRESIDENT

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