Kevin Cosmos v Yaburara and Coastal Mardudhunera Aboriginal Corporation

[2019] FWC 125

[2019] FWC 125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Cosmos
v
Yaburara and Coastal Mardudhunera Aboriginal Corporation
(U2018/9786)

DEPUTY PRESIDENT BINET PERTH, 11 JANUARY 2019

Application for an unfair dismissal remedy – failure to attend a conference – application to dismiss pursuant to s.399A – application dismissed.

[1] On 21 September 2018, Mr Kevin Cosmos (Mr Cosmos) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Yaburara and Coastal Mardhudunera Aboriginal Corporation (YACMAC).

[2] On 22 October 2018, YACMAC filed a response (Response) to Mr Cosmos’ Application, objecting on the basis that Mr Cosmos was not an employee of YACMAC and that YACMA is a small business employer and that they had complied with the Small Business Fair Dismissal Code.

[3] On 22 October 2018, the parties participated in a telephone conciliation with a FWC staff conciliator but the parties were unable to resolve the issues in dispute.

[4] The Application was allocated to Deputy President Binet and on 23 November 2018, the parties were issued with a Notice of Listing directing them to attend a conference at 10am on Wednesday, 12 December 2018. A video link between the FWC’s Perth premises and the Karratha Courthouse was booked to facilitate the parties’ appearance in-person.

[5] Mr Richard Cosmos, of YACMAC, appeared in person at the Karratha Courthouse. Mr Nish Sooriyapava, YACMAC’s representative appeared in person in Perth.

[6] Mr Cosmos failed to attend the Conference. My associate endeavoured to contact Mr Cosmos on his mobile phone number but he could not be contacted.

[7] In light of Mr Cosmos’ failure to attend the Conference, YACMAC were invited to apply to have the Application dismissed pursuant to section 399A of the FW Act (Dismissal Application).

[8] 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.”

[9] YACMAC filed in the FWC a Form F1 and supporting evidence on Tuesday 18 December 2018, forwarding a copy to Mr Cosmos (Dismissal Application).

[10] On Tuesday 18 December 2018, Mr Cosmos was invited to file submissions providing reasons why the FWC should not dismiss his application and evidence or other documentary material supporting those reasons. This material was to be provided to the FWC and YACMAC by 12 noon, Friday 21 December 2018.

[11] Mr Cosmos was also notified that if he did not comply with the directions and file submissions by this date, that his application for an unfair dismissal remedy would be dismissed.

[12] To date the FWC has not received any further communication from Mr Cosmos.

[13] The Explanatory Memorandum states the FWC may exercise its discretion to dismiss an application under this provision in situations which include the following:

Where an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend” 1

[14] On the application of YACMAC and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application on the ground that Mr Cosmos unreasonably failed to comply with a direction issued by the FWC to attend a conference conducted by the FWC.

[15] Consequently, the Application is dismissed pursuant to section 399A(1)(a) and (b) of the FW Act.

[16] An Order (PR703722) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR703721>

 1   Fair Work Amendment Bill 2012 (Cth), Explanatory Memorandum, page 36.