Kishor Patel v Moorabbin Cabinets (Vic) Pty Ltd

[2017] FWC 5581

[2017] FWC 5581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kishor Patel
v
Moorabbin Cabinets (Vic) Pty Ltd
(U2017/8076)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 26 July 2017, Mr Kishor Patel made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Patel said he was notified of his dismissal on 5 July 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 22 August 2017, however the day prior, Mr Patel’s representative sought an adjournment for at least two weeks as Mr Patel was leaving for overseas that day. The adjournment was granted and the matter was re-listed for conciliation on 8 September 2017. The representative for Moorabbin Cabinets (Vic) Pty Ltd (Moorabbin Cabinets) then sought an adjournment of the conciliation scheduled for 8 September 2017, which was also granted. The matter was re-listed for 12 September 2017. A further adjournment of three to four weeks was sought by Mr Patel’s representative. Following this request, the conciliation scheduled for 12 September 2017 was cancelled and the matter was referred to the Unfair Dismissal Case Management Team for programming for hearing.

[3] On 12 September 2017, directions were issued and the matter was listed for Arbitration Conference/Hearing. Mr Patel was directed to file an outline of submissions, witness statements and other documentary material by no later than noon on Monday 2 October 2017.

[4] On 28 September 2017, Mr Patel’s representative requested an extension of seven days to file material as Mr Patel was overseas and she had been unable to seek further instructions from him. An extension of time was granted and Mr Patel was directed to file his material by no later than noon on Monday 9 October 2017. A corresponding extension was given to Moorabbin Cabinets.

[5] On 6 October 2017, Mr Patel’s representative filed a Notice of Representative Ceasing to Act. On the same day, the Commission sent an SMS reminder to Mr Patel that his written submissions were due to be filed on Monday 9 October 2017.

[6] In the afternoon of 9 October 2017, the Commission sent an email to Mr Patel, noting that no material had been received and that if he wished to proceed with his application, a request for an extension of time should be made as soon as possible or the material should be filed. Mr Patel was advised in the absence of any correspondence from him, his matter would be listed for a non-compliance hearing on Friday 13 October 2017.

[7] On 11 October 2017, the Commission attempted to telephone Mr Patel, however this was unsuccessful and a voicemail message was left noting that his submissions were outstanding. A request was made for a return call.

[8] Also on 11 October 2017, Moorabbin Cabinets filed an application pursuant to s.399A of the Act, seeking the dismissal of Mr Patel’s application due to his failure to comply with a direction of the Commission.

[9] On 17 October 2017, correspondence was sent to Mr Patel, informing him of Moorabbin Cabinets’ s.399A application. The direction contained in the correspondence required submissions, evidence or other documentary material in respect of Moorabbin Cabinets’ application by close of business, 24 October 2017. It was noted that if there was a failure to comply with the direction, Mr Patel’s application would be dismissed.

[10] To date, Mr Patel has not filed any material with the Commission in response to Moorabbin Cabinets’ s.399A application.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Patel has failed to respond to the Commission’s correspondence and shown a lack of willingness to prosecute his case, despite being granted an extension of time to file his material. He has provided no explanation for his failure to comply with directions in relation to his unfair dismissal application under s.394 of the Act and Moorabbin Cabinets’ application under s.399A(1)(b) of the Act. In these circumstances, I will exercise my discretion under s.399A(1)(b) of the Act and dismiss Mr Patel’s application.

[15] An order giving effect to this decision will be issued.

DEPUTY PRESIDENT

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