Kyle Aloi v Geelong Collision Care

[2018] FWC 3198

[2018] FWC 3198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyle Aloi
v
Geelong Collision Care
(U2018/2628)

COMMISSIONER BISSETT MELBOURNE, 4 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 14 March 2018, Mr Kyle Aloi made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Aloi said his employment had been terminated by Geelong Collision Care (GCC) on 20 February 2018.

[2] The matter was listed for conciliation on 11 April 2018, however it could not proceed as Mr Aloi could not be contacted at the relevant time.

[3] On 1 May 2018, directions were issued by the Commission and the matter was listed for Jurisdiction (Extension of Time and Minimum Employment Period) Conference/Hearing. Mr Aloi was directed to file his initial material by no later than noon on 11 May 2018.

[4] As no material was received from Mr Aloi, in the afternoon of 11 May 2018 an email was sent to him advising that any request for an extension to file submissions should be made as soon as possible.

[5] On 14 May 2018, there was an attempt to contact Mr Aloi via telephone, however this was unsuccessful and a voicemail message was left requesting a return call. An SMS message was then sent to Mr Aloi reminding him that written submissions were due to be filed by noon on 11 May 2018 and a return call was sought.

[6] On 15 May 2018, a further voicemail message was left for Mr Aloi seeking a return call as soon as possible. An email was then sent to Mr Aloi advising if no response was received from him by 2.00pm on 16 May 2018, the matter would be listed for a non-compliance hearing on 18 May 2018.

[7] In the morning of 16 May 2018, another email was sent to Mr Aloi confirming that if no extension request or submissions were received from him by 2.00pm that day, the matter would be listed for a non-compliance hearing to occur on 18 May 2018. As no response was subsequently received, a Notice of Listing was sent to the parties by email and post confirming the scheduling of a non-compliance hearing on 18 May 2018.

[8] Prior to being connected to the non-compliance hearing on 18 May 2018, Mr Aloi advised Deputy President Clancy’s Associate that he had to work and could not attend the hearing. He was advised the hearing would proceed nonetheless and that he would need to respond to some correspondence to be sent by the Commission. Mr Aloi advised the Deputy President’s Associate that he would be pursuing his matter.

[9] The non-compliance hearing proceeded before Deputy President Clancy. GCC made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Aloi’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted GCC’s oral application.

[10] Following the non-compliance hearing, correspondence was sent to Mr Aloi’s nominated email and postal addresses advising him of GCC’s s.399A application. Mr Aloi was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 25 May 2018. This correspondence stated that if the Commission did not receive a response, Mr Aloi’s application for relief from unfair dismissal would be dismissed.

[11] To date, Mr Aloi has not filed any material with the Commission.

[12] 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.

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

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Aloi has failed to respond to numerous attempts made by the Commission to contact him. He was advised via telephone on 18 May 2018 that there would be correspondence sent to him from the Commission which would require a response, which he subsequently failed to respond to. Mr Aloi has shown no willingness to prosecute his case, despite saying on 18 May 2018 that he wanted to pursue his matter, and has provided no explanation to the Commission for his failure to comply with directions. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Aloi’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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