John Mustafovski v Sika Australia Pty Ltd

[2019] FWC 1243

[2019] FWC 1243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Mustafovski
v
Sika Australia Pty Ltd
(U2018/11781)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 15 November 2018, Mr John Mustafovski 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 Mustafovski said his employment had been terminated by Sika Australia Pty Ltd (Sika) on 25 October 2018. The application indicated that Mr Mustafovski was represented by Unfair Dismissals Direct (UDD).

[2] A conciliation was initially scheduled to take place on 10 December 2018, but due to operational issues, was cancelled at the initiative of the Commission. The conciliation subsequently took place on 3 January 2019, but the matter did not resolve.

[3] On 17 January 2019, a Notice of Listing was sent to the parties scheduling the matter for Arbitration Conference/Hearing on 27-29 March 2019. Directions were also issued requiring Mr Mustafovski to file with the Commission an outline of submissions, any witness statements and other documentary material he intended to rely on in support of his application by no later than noon on 11 February 2019. Sika was directed to file its reply material by no later than noon on 4 March 2019.

[4] On 25 January 2019, the Commission received a Form F54 – Notice of representative ceasing to act from UDD.

[5] In the afternoon of 11 February 2019, as no material was received from Mr Mustafovski, the Commission attempted to contact him via telephone but was unable to reach him. A voicemail message was left seeking Mr Mustafovski’s return call. Shortly following this, Mr Mustafovski returned the Commission’s call but was unable to reach a staff member, and instead left a voicemail that did not appear to contain any message.

[6] On 12 February 2019, the Commission successfully contacted Mr Mustafovski who advised that he was unaware of his material being due the day before. The Commission’s records indicate that Mr Mustafovski was advised to either file his material or send a request for an extension to file his material that night, otherwise he risked his matter being listed for a non-compliance hearing. Mr Mustafovski also provided the Commission an updated email address, to which the Commission subsequently sent template documents to assist him in completing his material. The email correspondence further indicated that if Mr Mustafovski did not wish his material to be marked as late or his matter to proceed to a non-compliance hearing, he was required to request an extension to file his material.

[7] As nothing was received from Mr Mustafovski, the Commission sent him further email correspondence warning that if no extension request or material was received from him by 9:00AM the next day, his matter would be listed for non-compliance hearing.

[8] On 14 February 2019, two Notices of Listing were sent to the parties scheduling the matter for a non-compliance hearing at 2:00PM on 15 February 2019.

[9] The non-compliance hearing proceeded before me on 15 February 2019. Despite two attempts to telephone him and voicemail messages left on each occasion, Mr Mustafovski could not be contacted. Sika made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Mustafovski’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Sika’s oral application.

[10] Following the non-compliance hearing, correspondence was sent to Mr Mustafovski’s nominated email and postal addresses advising him of Sika’s s.399A application. The postal correspondence was sent via express post. Mr Mustafovski was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 22 February 2019. The correspondence also noted that if the Commission did not receive a response, Mr Mustafovski’s application for relief from unfair dismissal would likely be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Mr Mustafovski’s nominated postal address on 18 February 2019.

[11] On 25 February 2019, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled for 27-29 March 2019.

[12] To date, Mr Mustafovski has not filed any material with the Commission.

[13] 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.

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

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

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Mustafovski has failed to respond to the numerous attempts made by the Commission to contact him since he was advised over the telephone on 12 February 2019 that his material was overdue. Apart from initially filing his application and attending the conciliation, Mr Mustafovski has otherwise not exhibited a willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with the Commission’s 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 Mustafovski’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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