Kashif Ali v Dhingra Enterprises Pty Ltd

[2019] FWC 8519

[2019] FWC 8519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kashif Ali
v
Dhingra Enterprises Pty Ltd.
(U2019/8151)

COMMISSIONER JOHNS SYDNEY, 30 DECEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] On 24 July 2019, Mr Kashif Ali (Applicant) made an application (Application) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Application was made in respect of the termination of his employment by Dhingra Enterprises Pty Ltd (Respondent) after around 3 years of employment.

[2] Various attempts at conciliation before a conciliator of the Fair Work Commission (Commission) were attempted in August 2019. However, conciliation was unsuccessful.

[3] On 23 August 2019, the matter was allocated to me. Later that day, the parties received a notice of listing, listing the matter for a mention/directions hearing at 3:00 pm on 28 August 2019.

[4] At the mention/directions hearing:

a) there was no attendance by the Applicant; and

b) the Respondent was represented by Vipin Dhingra, director of the Respondent.

[5] Consequently, later that day, my Chambers sent the Applicant correspondence about his failure to attend the mention/directions hearing.

[6] On 9 September 2019, the Applicant responded. He asked that the matter be re-listed.

[1] I re-listed the matter for mention/directions on 18 September 2019. The Respondent filed its Form F3 on that day.

[2] Both the Applicant and Mr Dhingra on behalf of the Respondent attended the rescheduled mention/directions. I then programmed the matter for a Determinative Conference on 28 October 2019.

[3] On 2 October 2019, the Applicant failed to file materials as directed on 18 September 2019.

[4] On 14 October 2019, my Chambers wrote to the Applicant about his non-compliance and asked him to explain the same. Later that day, the Applicant filed a statement prepared in relation to a separate Worker’s Compensation matter.

[5] On 15 October 2019, my Chambers wrote to the Applicant and provided him with information about how to access pro bono legal services.

[6] On 16 October 2019, the Respondent filed in the Commission and served on the Applicant a Form F1 and submissions seeking that the matter is dismissed pursuant to s.399A and/or s.587 of the FW Act.

[7] Section 399A of the FW Act provides:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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] Section 587 of the FW Act provides:

“Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[9] On 21 October 2019, my Chambers wrote to the Applicant in the following terms:

“We refer to the mention/directions hearing held at the Fair Work Commission (Commission) in relation to your unfair dismissal application on Wednesday, 18 September 2019, before Commissioner Johns. At the hearing, the Commissioner issued directions timetabling the filing of materials and set the matter down for a determinative conference to be held on 28 October 2019 (see enclosed).

On 2 October 2019, you were required to file and serve materials in support of your unfair dismissal application. You failed to file any material in support of your unfair dismissal application without reasonable excuse. On 14 October 2019, I followed up with an email requesting that you explain your failure to file any submissions in accordance with the Commissioner’s directions or to discontinue your unfair dismissal application if you no longer wished to continue.

On 14 October 2019, Chambers received an email from you which attached a witness statement made by you in relation to another matter. In response, on 15 October 2019, I reiterated that you had missed the deadline to file materials in relation the matter and you needed to explain to the Commissioner your delay. I provided you with some legal referrals and general information in relation to the processes of the Fair Work Commission. On 16 October 2019, the Respondent filed its materials. Within its materials the Respondent made an application pursuant to s.399A and s.587 of the Fair Work Act 2009 (Cth) (FW Act) to have your unfair dismissal application dismissed (see enclosed).

…

This means the Respondent has applied to have your unfair dismissal application dismissed because you have failed to explain your failure to file any materials on time in accordance with the Commissioner’s directions of 18 September 2019.

Commissioner Johns DIRECTS you to lodge with the Commission, and serve on the Respondent, your reason/s for not filing any materials on time.

You must do this by no later than 4:00 pm on Monday, 28 October 2019.

If you do not file your reason/s by 4:00 pm on Monday, 28 October 2019, or, if your explanation is not reasonable, your application for relief from unfair dismissal will be dismissed and a decision will be published on the Commission’s website.”

[10] On 22 October 2019, the Applicant wrote to the Commission indicating that he wanted to subpoena files and documents.

[11] Later that day, my Chambers wrote to the Applicant in the following terms:

“The Commissioner has read the material filed in this matter to date.

Presently there is an application before the Commission asking it to dismiss Mr Ali’s unfair dismissal application.

That application will now be programmed for hearing.

The Respondent has filed its material in relation to that application.

The following directions apply and MUST be complied with.

1. By 4pm on 30 October 2019 the Applicant must file in the Commission and serve on the Respondent any evidence and or submissions explaining why his application should not be dismissed in circumstances where:

•  he failed to comply with the Directions issued on 18 September 2019; and

•  the material he filed on 14 October 2019 seems to have nothing to do with his unfair dismissal but relates to a workers’ compensation claim. That material is not admissible in an unfair dismissal application. Consequently, it seems that the unfair dismissal application has “no reasonable prospects of success” and should be dismissed under section 587(1)(c).

2. By 4 pm on 6 November 2019 the Respondent must file in the Commission and serve on the Applicant any reply to the Applicant’s submissions.

3. The Respondent’s application (to have the unfair dismissal application dismissed) will be heard by telephone at 11 am on 7 November 2019.

Below the Applicant claims he has a medical condition preventing this matter from being heard. Without medical evidence of the same being provided to the Commission the timetable above will be applied.”

[12] On 23 October 2019, the Applicant’s wife wrote to the Commission pleading the substance of her husband’s case. She asked to adjourn the s.399A hearing listed for 7 November 2019, by reason of her husband’s medical condition.

[13] On 24 October 2019, the Applicant supplied a medical certificate. In the circumstances, the s.399A hearing listed for 7 November 2019, was re-listed for 12 December 2019.

[14] The s.399A hearing on 12 December 2019, was attended by the Applicant and Mr Dhingra on behalf of the Respondent. During the hearing, I confirmed with the Applicant the chronology of events (detailed above and in correspondence to him) and sought an explanation for why he had not filed any materials in support of his substantive unfair dismissal application. The Applicant was unable to provide an explanation.

[15] I then asked the Applicant why I should not dismiss his application for an unfair dismissal remedy in circumstances where he had not:

a) filed any materials in relation to the substantive application; and

b) provided any explanation for his failure to do so.

[16] The Applicant did not give me a reason why I should not dismiss his application.

[17] I am satisfied that the Applicant has unreasonably failed to comply with a direction of the Commission (section 399A(1)(b) of the FW Act).

[18] I am further satisfied that Mr Ali’s application for an unfair dismissal remedy has no reasonable prospects of success (section 587(1)(c) of the FW Act) in circumstances where he has failed to file any relevant material in support of the same. It is the responsibility of an applicant to advance their case in the Commission. In this matter the Applicant has, despite numerous opportunities, failed to do so.

[19] Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy.

[20] An order giving effect to this decision will be issued simultaneously with this decision.

COMMISSIONER

Hearing details:

Mr Ali for himself

Mr Dhingra for the Respondent

2019

12 December

Printed by authority of the Commonwealth Government Printer

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