Johnson Kongratsasy v Tassie Fine Foods Pty Ltd

[2024] FWC 775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Johnson Kongratsasy
v

Tassie Fine Foods Pty Ltd

(U2024/223)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 28 MARCH 2024

Application for an unfair dismissal remedy - application dismissed pursuant to s399A

Mr Johnson Kongratsasy lodged an unfair dismissal application on 7 January 2024.

On 12 January 2024, the Commission sent a Notice of Listing to the parties, listing the matter for a conciliation conference on 12 February 2024. Despite multiple attempts by the conciliator to contact the Applicant via both telephone and email, the Applicant failed to attend and the conciliation did not proceed.

On 23 February 2024, a Notice of Listing was issued by my chambers for a Mention on 28 February 2024. The listing required parties to advise of their attendance by no later than 4:00pm on 27 February 2024.

Mr Kongratsasy failed to advise of his attendance by the timeframe required. Multiple unsuccessful attempts were made to contact Mr Kongratsasy by telephone and by email, prior to the commencement of the Mention. I note that there was no ability to leave a voice mail.

The Respondent and their representative attended the scheduled Mention. Mr Kongratsasy failed to attend. During the Mention, the Respondent foreshadowed that they would make an application to dismiss Mr Kongratsasy’s unfair dismissal application pursuant to s.399A and and 587(1)(c) of the Fair Work Act 2009 (the Act).

On 19 March 2024, the Respondent filed an application under s.399A and and 587(1)(c) of the Fair Work Act 2009 (the Act) to dismiss Mr Kongratsasy’s application, via a form F1 (Dismissal Application).

On 20 March 2024, my chambers forwarded the Dismissal Application to the Applicant and advised that his unfair dismissal application may be dismissed without further notice should he fail to respond by 27 March 2024. To date, the Applicant has not responded to the multiple attempts to communicate with him.

In respect of section 587(1)(c), the Respondent submits that Mr Kongratsasy has otherwise failed to prosecute his case as required by the Commission. On that basis, the Respondent submits that the application has no reasonable prospect of success.

I am satisfied that s.399A of the Act applies to the Respondent’s Dismissal Application.

I am satisfied that Mr Kongratsasy has unreasonably failed to comply with the Directions of the Commission by failing to attend the conciliation conference on 12 February 2024 and by failing to attend the Mention on 28 February 2024.

Further, the Applicant has taken no steps to demonstrate that he wishes to pursue his unfair dismissal application against the Respondent.

In the circumstances, I exercise my discretion pursuant to s.399A(1)(a) of the Act to dismiss Mr Kongratsasy’s unfair dismissal application. An order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Johnson Kongratsasy filed an unfair dismissal application against Tassie Fine Foods Pty Ltd with the Fair Work Commission, seeking a remedy for his termination. The matter was scheduled for a conciliation conference on 12 February 2024, but Mr Kongratsasy did not attend. Further, on 28 February 2024, a Mention was scheduled to proceed with the case, but Mr Kongratsasy again failed to attend or respond to multiple attempts by the Commission to contact him. The Respondent subsequently filed an application to dismiss Mr Kongratsasy’s case under section 399A of the Fair Work Act 2009, arguing that his failure to attend the proceedings and communicate with the Commission constituted a failure to prosecute his case as required by the Commission.

The central legal issue before the Deputy President was whether Mr Kongratsasy's failure to attend the required proceedings and communicate with the Commission constituted a failure to prosecute his case as required by the Commission. The Deputy President found that Mr Kongratsasy had unreasonably failed to comply with the directions of the Commission by not attending the scheduled conciliation conference and Mention. Further, Mr Kongratsasy had taken no steps to demonstrate that he wished to pursue his unfair dismissal application. The Deputy President exercised their discretion under section 399A(1)(a) of the Fair Work Act 2009 to dismiss Mr Kongratsasy’s unfair dismissal application. The Deputy President concluded that Mr Kongratsasy’s application had no reasonable prospect of success due to his failure to comply with the Commission’s directions and to prosecute his case.

In reaching this decision, the Deputy President considered the provisions of section 399A of the Fair Work Act 2009, which allows the Commission to dismiss an application if the applicant has unreasonably failed to comply with a direction of the Commission. The Deputy President also noted that Mr Kongratsasy had failed to respond to multiple attempts by the Commission to contact him and to advise of his attendance at the scheduled proceedings. The Deputy President concluded that Mr Kongratsasy’s failure to attend the proceedings and communicate with the Commission constituted a failure to prosecute his case as required by the Commission. The Deputy President exercised their discretion to dismiss Mr Kongratsasy’s unfair dismissal application without further notice. An order to this effect will be issued with this Decision.

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