Kogula Nathan Letchumanen v Treviso Farm Management Pty Ltd

[2020] FWC 3016

[2020] FWC 3016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kogula Nathan Letchumanen
v
Treviso Farm Management Pty Ltd
(U2020/3023)

COMMISSIONER BISSETT MELBOURNE, 23 JUNE 2020

Application for an unfair dismissal remedy – failure to comply with directions - s.399A application to dismiss.

[1] On 15 March 2020 Mr Kogula Nathan Letchumanen (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant alleges he was dismissed from his employment with Treviso Farm Management Pty Ltd (Respondent) on 12 March 2020.

[2] The matter was listed for conciliation on 20 April 2020. A SMS text message was to the parties on 17 April 2020 reminding them of the conciliation scheduled for the following day.

[3] Despite numerous attempts to contact the Applicant on his nominated telephone number on 20 April 2020 the conciliation could not proceed as the Commission was unable to contact the Applicant. Later that day the Commission sent correspondence to the Applicant’ nominated email address requesting that he advise the Commission if he wished to continue with his application of discontinue his application.

[4] No response was received to the correspondence..

[5] On 23 April 2020 the Commission attempted to telephone the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call and a voicemail message was left requesting a call back. The Applicant did not return the Commission’s call.

[6] On 12 May 2020 the Commission emailed correspondence to the Applicant’s nominated email address in regard to his failure to advise the Commission if he wished to continue with his application. The Applicant was directed to advise the Commission by noon on 19 May 2020 if he wished to continue with his unfair dismissal case. The correspondence stated that if the Commission did not receive a response, his matter will be listed for a non-compliance hearing during which time his application may be dismissed and the file closed. The Applicant did not respond.

[7] The matter was listed for Non-compliance Hearing before Commissioner Lee on 22 May 2020. The Applicant did not attend and attempts to contact him were unsuccessful. At the hearing the Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the directions of the Commission. Commissioner Lee waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[8] On 25 May 2020 correspondence was sent to the Applicant’s nominated email address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00 pm on 11 May 2020. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[9] To date, the Applicant has not filed any material with or otherwise contacted the Commission.

[10] Section 399A of the FW 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.

[11] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him. The Applicant has failed to comply with the direction of the Commission issued on 12 May 2020 and failed to attend the Non-compliance Hearing on 22 May 2020.

[13] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately

COMMISSIONER

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