Jan Florczak v Metro Trains Melbourne Pty Ltd T/A Metro Trains

[2017] FWC 3123

[2017] FWC 3123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jan Florczak
v
Metro Trains Melbourne Pty Ltd T/A Metro Trains
(U2017/2332)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 3 March 2017, Mr Jan Florczak made an application (the Application) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Florczak stated he was dismissed by Metro Trains Melbourne Pty Ltd T/A Metro Trains (Metro Trains) on 10 February 2017.

[2] The matter was initially listed for conciliation on 6 April 2017, however the Fair Work Commission (Commission) received an email from Mr Florczak’s then representative Ms Mekhael of the Rail, Tram and Bus Union (RTBU) on 17 March 2017 requesting an adjournment due to Mr Florczak’s unavailability on that date.

[3] This request was granted and the matter was re-listed for conciliation on 24 April 2017, however it did not resolve. Consequently, directions were issued and the matter was listed for hearing.

[4] Mr Florczak was sent a Notice of Listing on 27 April 2017 which contained directions for him to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon on Monday 15 May 2017. This was sent to the postal address for Mr Florczak that had been provided in his Form F2 – Unfair Dismissal Application. Later on the same day, the Commission received a Form F54 – Notice of representative ceasing to act from the RTBU. This form also contained an email address and mobile phone number for Mr Florczak.

[5] On 11 May 2017, the Commission sent Mr Florczak a Short Message Service (SMS) reminder, advising that his submissions were due on Monday 15 May 2017.

[6] Mr Florczak did not file any material by that time.

[7] The Commission sent an email to Mr Florczak at 3:39pm on 15 May 2017, advising that his submissions due at noon on that day had not been received. This correspondence also advised Mr Florczak that if he did not contact the Commission urgently, the matter would be listed for a non compliance hearing on 18 May 2017. The Commission sent a subsequent SMS to Mr Florczak, advising that his submissions were overdue.

[8] On 16 and 17 May 2017, the Commission made two attempts to telephone Mr Florczak regarding his outstanding material and voicemail messages were left requesting he return the Commission’s call.

[9] As Mr Florczak did not comply with the directions, the matter was listed for a non compliance hearing before Commissioner Wilson on 18 May 2017.

[10] Mr Florczak and Metro Trains both did not attend the non compliance hearing on 18 May 2017, despite numerous attempts made by the Commission to contact them. Consequently, the Commission sent correspondence to Metro Trains, noting its eligibility to make an application to dismiss pursuant to s.399A of the Act.

[11] On 26 May 2017, Metro Trains filed a Form F1 – Application, seeking the dismissal of Mr Florczak’s application under s.399A of the Act. The Commission subsequently sent correspondence to Mr Florczak informing him of Metro Trains’ s.399A application.

[12] In this correspondence, Mr Florczak was directed to file submissions and other documentary material in respect of Metro Trains’ application by close of business on 2 June 2017. Mr Florczak was advised that if he failed to comply with this direction, his application would be dismissed.

[13] Mr Florczak did not respond to the correspondence or file 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 Florczak 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 Florczak has failed to respond to numerous attempts by the Commission to contact him. He has shown no willingness to prosecute his case and provided no explanation for his failures to comply with directions or attend a hearing held by the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Florczak’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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