Lakpa Moktan v Cripps Nubake

[2023] FWC 1830

[2023] FWC 1830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lakpa Moktan
v

Cripps Nubake

(U2023/3545)

COMMISSIONER CIRKOVIC MELBOURNE, 17 JULY 2023

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted

1. On 24 April 2023, Lakpa Moktan (the Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment. The Applicant’s application names Tristan Baker as the Employer. I am satisfied that the Applicant was employed by Cripps Nubake[1] (the Respondent) and have exercised my discretion under s.586 of the Act to amend the name of the Respondent. In his Form F2, the Applicant provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter.

1. On 9 May 2023, the Commission issued a Notice of Listing for conciliation before a staff conciliator to occur on 7 June 2023. On 11 May 2023, the Applicant sent an email to the Commission, which is reproduced below:

“Hi mate it’s me Lakpa. I don’t wanna take part in a concilation. Thanks for that but I really wanna go with Fairwork only.and also I am going back my country because I am not getting treatment after my claim canceled it’s been 1 and half months and I need to go more 3 months as my physician said so I am going back to my country to take some treatment in this time. I am wondering if I can not attend the court hearing at that time and my relatives can attend that hearing day because I might take 3 months to come back in Tasmania hope you have got better idea to help me out thanks

Lakpa”

1. On 30 May 2023, a member of the Commission’s Unfair Dismissal Team replied to the Applicant’s email, which is reproduced below:

“Dear Lakpa,

Thank you for your email.

According to our process you have a few options available to you:

1)   Attend a conciliation conference call. This is conducted entirely over the phone (we can dial international numbers if needed) and is an informal discussion between the parties in an attempt to reach an agreement. The parties do not speak to each other directly however can hear one another. You can have support persons join you at conciliation however it cannot proceed without you. If you wish to proceed with the conciliation, your attendance will be required.

2)   Skip conciliation and proceed to a formal hearing. This is a formal process and your matter will be heard before a Member of the Commission. Parties will be required to provide their evidences and the Member will decide on the matter. The hearing may either be conducted online or in person and attendance of both parties is also required at this stage.

If you wish to attend the conciliation however need the date to be rescheduled, please send us an adjournment request containing the following information:

-   Detailed explanation of why you cannot attend conciliation at the current date/time.

-   Supporting documentation (medical cert, flight booking, etc)

-   Your next available date

-   Notify the respondent of your adjournment request by copying them into the email you send us. Confidential information and documentation can be sent to us in a separate email.

Please let us know how you would like to proceed.

If you require further information, please email or call us on 1800 759 566.

Kind Regards”

1. On 2 June 2023, a staff member of the Commission attempted to contact the Applicant by phone but was unsuccessful. A voice message was left requesting a call back.

1. On 7 June 2023, conciliation before a staff conciliator was attempted, but the Applicant was unable to be contacted on the mobile number provided.

1. On 22 June 2023, the file was allocated to my chambers. On 26 June 2023, I listed this matter for Hearing on 16 August 2023 and issued written directions for the filing and submission of material. A Notice of Listing confirming the date and time of the hearing was sent to the Applicant by his nominated email address.

2. On the same day, I directed the parties to attend a Member Assisted Conciliation (MAC) before Commissioner Mirabella. The Chambers of Commissioner Mirabella then listed the matter for a MAC on 7 July 2023.

1. On 7 July 2023 at 9.30am, Commissioner Mirabella’s chambers attempted to convene a MAC. The Respondent and their representative were in attendance, but the Applicant did not answer his phone, despite three attempts being made to contact him. A voice message was unable to be left due to ‘the mobile service having incoming call restrictions’ At 9.37am, Commissioner Mirabella’s chambers sent an email to the Applicant providing the Microsoft Teams link and requesting that he urgently join the conciliation. The parties in attendance waited for the Applicant until 9.53am, where Commissioner Mirabella indicated that she would relist the MAC for 11 July 2023 at 9.00am.

1. On 11 July 2023, Commissioner Mirabella relisted the MAC for 9.00am. At 9.10am, as the Applicant was not present, Commissioner Mirabella’s chambers sent an email to the Applicant providing the Microsoft Teams link and advising him that they could dial him in through his phone number, and again requesting that he urgently join the conciliation. Commissioner Mirabella’s chambers then attempted to contact the Applicant by telephone a further three times but were unable to leave a voice mail due to the contact number provided appearing to be disconnected. At 9.25am, the MAC was adjourned due to the Applicant’s non-attendance.

1. On 12 July 2023 at 7.51pm, the Applicant contacted Commissioner Mirabella’s chambers by email. The email is reproduced below:

“Hi Chambers it’s me Lakpa actually I am not in Australia at the moment. I am in own country Nepal so I can’t make it on that date.I just open my gmail now can we reschedule and what I have to do pls let me know

Thanks Lakpa Moktan”

1. On 13 July 2023, my Chambers sent a non-compliance letter to the Applicant. This letter is reproduced below:

“Dear Mr Moktan,

I acknowledge receipt of your email dated 12 July 2023 and refer to the Directions issued by Commissioner Cirkovic on 26 June 2023 (the Directions).

A Direction was issued on the Applicant to provide to the Commission and to the Respondent by 5.00pm on Tuesday 11 July 2023.

·a written outline of submissions;

·a witness statement from each witness intended to call to give evidence at the arbitration;

·a copy of any document intended to be relied upon; and

·details of any relevant post-dismissal employment or earnings.

I have no record of any material or response being received in accordance with that Direction. Non-compliance with these Directions has the potential to impact on any continuation of the proceedings.

Further, a Direction was issued on the Applicant to attend a Member Assisted Conciliation before Commissioner Mirabella. You did not comply with this direction and failed to attend the Conciliation on 7 July 2023. Commissioner Mirabella relisted the Member Assisted Conciliation for 11 July 2023. You failed to attend the relisted Conciliation.

I note that you are currently in Nepal and you state you have not checked your emails. It is incumbent on you to check your emails regularly, remain in regular contact with the Commission, and comply with its directions if you wish to continue to prosecute your application.

Your email of 12 July 2023 does not address the above matters, nor do you provide an explanation as to your failure to provide the Commission and the Respondent your material.

The Commissioner directs that you provide a response to this correspondence, including a reason for your failure to comply with the Directions no later than close of business Friday 14 July 2023.

Failure to do so may result in the dismissal of your application pursuant to section 587 of the Fair Work Act 2009 (Cth).

If you require further information, please contact Chambers.”

1. On 13 July 2023 at 4.00pm, the Applicant provided the below response to the non-compliance letter:

“Hi respected sir it’s me Lakpa again. I applied for a unfair dismissal case because i have been working in Cripps nubake from last year January.I have been working there permanent from last year August 1st and happened my work incident 17/02/2023 at work place dislocated my right shoulder and went to royal hobart hospital. I applied work compensation.they cover my compensation 1 month and they suspended my insurance they have seen I am throwing a small dough in the machine that captured in video and they said this doesn’t support me and suspended my insurance. They have organized meeting for to discuss what happened and I went there and show me video I am throwing small dough in machine and said we don’t accept and without giving any notice they fired me while I am serious injured.which push me to go to mental disturbed and I did not get proper treatment I can not afford the rent and treatment so I decided to go back in Nepal. Still my hand is not moving properly.i don’t know I will get justice or not but this is so painful for me.

I can only mail you from here.don’t have Vodafone so I can’t make a call sorry for that.if you need any information pls let me know.Hope you can understand thanks 

Lakpa M”

1. At 4.45pm the same day, my Chambers wrote the following back to the Applicant:

“Dear Mr Moktan,

I refer to the above matter and the below correspondence.

The Commissioner confirms receipt of your below email outlining the circumstances of your dismissal. In future, please ensure the Respondent is copied into all correspondence with the Commission.

It is noted that you are no longer based in Australia and do not have access to a telephone.

This creates difficulty in prosecuting your case as the Commissioner requires your attendance at conferences that have been convened to program and manage your application.

It is also noted that you have been directed to attend a hearing by Microsoft Teams. Further, following the receipt of submissions, the Commissioner may require your attendance in person in Hobart, Tasmania to attend a hearing.

The Commissioner directs that you provide a current contact number that allows you to participate in an audio conference if you wish to prosecute your case.

Failure to participate in a conference before the Commission may result in the dismissal of your application.

Kind regards,”

1. The Applicant responded to the above correspondence at 6.21pm the same day as follows:

“Hi mate is there any possible to take my case in hold till I return back At Hobart so I can do continue I don’t have no option if you have any idea pls let me know thanks”

1. On 14 July 2023, the Respondent sent an email to the Commission applying for the matter to be dismissed under s399A. This email is reproduced below:

“Dear Commissioner

We refer to the below and thank you for same.

We note that we have only been privy to the email sent by the Applicant on July 13^th which was forwarded by the Commission. We therefore are not aware of the information contained in the first email that your previous correspondence refers to which contains the circumstances that have prevented the Applicant from:

·Attending the conciliation

·Answering phone calls that were attempted at the conciliation

·Attending two (2) MAC listings

·Answering phone calls that were attempted at both MAC listings over a period of approximately thirty (30) minutes on each occasion  

·Answering emails that were sent at both MAC listings over a period of approximately thirty (30) minutes on each occasion  

·Providing their materials in accordance with the direction that this occur by 5pm on Tuesday 11 July 2023

·Provide a reasonable explanation as to their failure to provide the Commission and the Respondent the material and participate in the process to date

The above has been at great cost to the Respondent both financially and in time spent attending multiple listings of this matter and being required to remain present whilst numerous attempts have been made to contact the Applicant.

We submit the fact that the Applicant now resides in Nepal is not a sufficient reason for their non-participation to date. Particularly given that the above was arranged to occur virtually, which the Applicant can do at any location.

We note that the Directions state that the Applicant was to provide the Commission and the Respondent by 5pm on Tuesday 11 July:

• a written outline of submissions;

• a witness statement from each witness intended to call to give evidence at the arbitration;

• a copy of any document intended to be relied upon; and

• details of any relevant post-dismissal employment or earnings.

We are still unclear whether the email sent by the Applicant (sent after the directed date and time), which does not contain this information, is what the Applicant is intending to submit in satisfaction of these Directions.  We submit that the email provided does not satisfy the Directions issued nor does it provide adequate materials for the Respondent to properly respond to. We note that the Applicant has been provided with more than sufficient opportunity to prepare such materials and could have obtained assistance at any time throughout this process.

We note the Respondent is directed to provide responding documents by Tuesday 25^th July 2023 but, we respectfully submit, this cannot occur until the Applicant has sufficiently lodged their materials. We therefore request that the above is confirmed as a matter of urgency and that the Direction timeline is revisited to allow sufficient opportunity for the Respondent to finalise and lodge these materials noting they have proactively participated in the process to date and the stalling of this matter lies solely with the Applicant.

We also again respectfully submit that this matter should be dismissed given the following:

·The non-participation of the Applicant;

·The costs already incurred by the Respondent due to the Applicant’s non-attendance;

·It not being clear whether the Applicant will be able to prosecute their case, which based on the information currently before the Commission, we submit they cannot;

·The Applicant has refused to respond to directions and attend conferences on multiple occasions;

·The Applicant has not provided sufficient justification as to their non-attendance and reasoning as to why the Commission should not dismiss their claim for failure to attend the proceedings;

·The fact that the Applicant has relocated to Nepal is not sufficient reason for non-attendance when considering the facts of this matter and the proper administration of justice and fairness;

·Further, should the matter proceed to hearing and a decision being found in favour of the Applicant (which the Respondent denies vehemently would be the case) the primary remedy is reinstatement. This cannot occur if the Applicant now resides in Nepal;

·The Applicant has been made aware on multiple occasions that their non-attendance may result in the dismissal of the Application – they have still chosen not to participate on multiple occasions and via multiple means being email, phone and Teams;

·The Applicant has been provided with every possible opportunity to participate at the detriment of the Respondent and the administration of justice and fairness;

·It is unjust to expect the Respondent to go to addition cost of preparing materials for hearing given the above and the fact that it is still not clear whether the Applicant will in fact be able to prosecute their case (which we would submit they cannot).

We again therefore respectfully submit that this matter should be dismissed.”

1. On 14 July 2023 at 1.43pm, the Respondent lodged a Form F1 indicating their intention to have the matter dismissed under s399A.

1. On 14 July 2023, my Chambers listed the matter for a non-compliance hearing to occur on 24 July 2023, and issued the following directions via email:

“Dear parties,

I refer to the above matter and the attached Form F1 applying for the matter to be dismissed under s399A of the Fair Work Act lodged by the Respondent.

The Commissioner directs the Applicant to address the filed Form F1 and to put in further materials regarding the Respondent’s application to have the matter dismissed by 5.00pm (AEST)/12.45pm (Nepal time), Wednesday 19 July 2023.

Further, the Commissioner directs the Applicant to provide evidence of their return date to Australia. This may be in the form of a plane ticket or travel booking. This is to be submitted by 5.00pm (AEST)/12.45pm (Nepal time), Wednesday 19 July 2023.

The Commissioner will list the matter for a non-compliance hearing on Monday 24 July 2023 at 2.30pm (AEST)/10.15am (Nepal time), Monday 24 July 2023 by Microsoft Teams.

A Notice of Listing with instructions to join the hearing will be issued in due course. Please note a telephone is not required, and the hearing can be accessed through any internet enabled device (bolded for emphasis).

Kind regards,”

1. The Applicant did not submit any material regarding the Respondent’s application to have the matter dismissed, nor did he provide evidence of his return date to Australia.

1. On Monday 24 July 2023, a non-compliance hearing was held on Microsoft Teams at 2.30pm. The Applicant did not attend, despite attempts to dial him into the hearing. The Respondent consented to the matter being determined on the papers.

1. 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.

…

(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.”

1. In Lockyear v Graeme Cox [2021] FWCFB 875 at [57] the Full Bench found:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5.   A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. I have applied the reasoning of the Full Bench in coming to my decision.

1. Section 399A(2) is satisfied by the Respondent’s application of 14 July 2023. Similarly, s.399A(1)(a) is satisfied by the Applicant’s failures to attend the MAC on 7 and 11 July 2023, and the non-compliance hearing on 24 July 2023. The jurisdictional pre-requisites are met for the Applicant’s application to be dismissed and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their “day in court.”[2]

1. The Applicant was served with a copy of the s.399A application on 14 July 2023 and given until 5.00pm 19 July 2023 to respond. The email sent to the Applicant on 13 July 2023 clearly stated that, “failure to participate in a conference before the Commission may result in the dismissal of your application.” The Applicant was then afforded a further opportunity to respond by attending the non-compliance hearing on 24 July 2023.

1. I am satisfied that the Applicant has acted unreasonably in failing to attend the MAC on 7 and 11 July 2023 and the non-compliance hearing on 24 July 2023. He was advised of both in advance via the contact details he has provided and has made minimal responses to the repeated Commission attempts to contact him. Further, I consider the Applicant has unreasonably failed to comply with my directions to respond to the s.399A application, and the directions for the unfair dismissal application, by not filing his submissions in response to the 26 June 2023 Directions. Finally, I note that the Applicant also did not attend a conciliation before a staff conciliator listed on 7 June 2023, prior to the matter being allocated to me.

1. For completeness, I note that the Applicant has provided some limited responses to the Commission’s attempts to contact him. The Applicant sent correspondence to Chambers on 12 and 13 July 2023 and indicated that he was now based in Nepal. In accordance with the Directions of the non-compliance letter sent to the Applicant on 13 July 2023, he provided a response outlining his application, albeit incomplete, on the same day. Finally, he responded to the 13 July email querying whether he would be able to delay his application until he returned to Australia, however he failed to provide evidence of when he would return as directed to on 14 July 2023.

1. I have considered that the Applicant is currently residing in Nepal and has had difficulties accessing his mobile phone. That said, the Applicant was made aware that he could attend through using the Microsoft Teams software, which did not require a mobile number. Further, the Applicant has failed to respond to correspondence from the Commission requesting that he provide a date of his expected return to Australia, or some indication as to when he could fully participate in the prosecution of his application.

1. In my view, while the above actions constitute some evidence that the Applicant has not entirely abandoned his application, they are insufficient, taken individually or as a whole, to displace my view that the Applicant has acted unreasonably in failing to attend the MAC and non-compliance hearing, and to comply with directions issued by the Commission in relation to his application.

1. The Respondent is entitled to ask for finality. The Applicant has not taken up the opportunity to prosecute his case. In the circumstances, I see no utility in allowing the Applicant’s claim to continue, and I therefore grant the Respondent’s application under s.399A.

1. The Applicant’s application is therefore dismissed.

COMMISSIONER

Appearances:

No appearance for the Applicant

A George on behalf of the Respondent.

Hearing details:

24 July 2023 by Microsoft Teams.

[1] Form F3 – Employer Response.

[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].

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