Liuuaina Kini v Formwork Solutions Sydney Pty Limited

[2019] FWC 4775

[2019] FWC 4775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Liuuaina Kini
v
Formwork Solutions Sydney Pty Limited
(U2019/319)

COMMISSIONER JOHNS SYDNEY, 17 JULY 2019

Application for an unfair dismissal remedy - Section 399A - Dismissing Applications - Failure to comply with a direction of the Commission.

Introduction

[1] On 9 January 2019, Mr Liuuaina Kini (the Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Application was made in respect of his employment at Formwork Solutions Sydney Pty Limited (the Respondent) and was lodged with the Fair Work Commission (Commission) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

[2] The Applicant commenced working for the Respondent on 10 January 2018. On 20 December 2018, the Respondent notified the Applicant of their intention to dismiss the Applicant. The dismissal took effect on that same day.

[3] On 25 January 2019, the Respondent lodged a Form F3 in response to the Applicant’s application.

[4] Various attempts at conciliation before a conciliator of the Commission were attempted in the month of February 2019. However, conciliation did not prove to be successful.

[5] On 26 February 2019, Mr Dayne Syron of the CFMMEU filed a Form F54 ceasing to act as union representative for the Applicant.

[6] On 28 February 2019, Deputy President Dean allocated the matter to me. Later that day, the Respondent filed a Form F4 objecting to the Applicant’s application on jurisdictional grounds.

[7] On 1 March 2019, I sent the parties a notice of listing, listing the matter for a mention/directions hearing at 4:00pm on Wednesday, 6 March 2019.

[8] At the scheduled mention/directions hearing on 6 March 2019, the Applicant appeared on his own behalf. The Respondent was represented by Mr Mark Gusse, WHS Coordinator of the Respondent. The matter was set down for a jurisdictional determinative conference scheduled to take place on 16 April 2019.

[9] A notice of listing and directions were issued to the parties the following day on 7 March 2019. Pursuant to the directions, the Respondent filed in the Commission and served on the Applicant their jurisdictional submissions on 15 March 2019.

[10] On 3 April 2019, the Applicant was due to file his submissions pursuant to the directions of 7 March 2019.

[11] On 3 April 2019, the Applicant called the Commission and enquired about what he needed to do prior to the determinative conference scheduled to take place on 16 April 2019. My Chambers informed the Applicant that he needed to file submissions today as per the directions of 7 March 2019. My Chambers informed the Applicant that if he would like to apply for an extension to file his submissions, he must do so in writing.

[12] The Applicant failed to comply with the directions of 7 March 2019 as he did not file any submissions nor did he apply for an extension to file his submissions. On 4 April 2019, Mr Gusse of the Respondent raised the Applicant’s failure to file submissions with my Chambers via email.

[13] On 5 April 2019 and 12 April 2019, the Applicant advised my Chambers over the phone that he intended to discontinue his current application for unfair dismissal before me. In response, my Chambers sent the Applicant via email on 8 April 2019 and on 15 April 2019 a Form F50 ‘Notice of Discontinuance’ inviting him to withdraw the matter if he did not wish to proceed with the Commission hearing his application.

[14] On 15 April 2019, the determinative conference listed for 16 April 2019 was cancelled due to the Applicant’s non-compliance with the directions of 7 March 2019.

[15] On 16 April 2019, the Respondent filed in the Commission and served on the Applicant a Form F1, requesting that the Applicant’s unfair dismissal application be dismissed pursuant to s.399A of the FW Act.

[16] 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.”

[17] On 17 May 2019, my Chambers sent an email to the Applicant further requesting him to either respond to previous email correspondence or file a Form F50 if he intended to withdraw his application for unfair dismissal. This email was also sent via express post to the Applicant’s address nominated on his Form F2 application. It was delivered on 20 May 2019.

[18] The email correspondence to the Applicant of 17 May 2019 stated,

“… I refer to your unfair dismissal application before the Fair Work Commission.

I note that you have communicated to me numerous times on the phone that you wish to discontinue your application. I also note that you have failed to comply with the Commissioner’s Directions in relation to the filing of materials.

This email is to advise that your application cannot be discontinued until you have formally discontinued your application by filing the attached Form F50 ‘Notice of Discontinuance’. You can file this form via email, post or in person. Filing option details are within my signature below.

If you do not file this Form F50, the Commissioner will write a decision dismissing your application pursuant to s.399A of the Fair Work Act 2009 (Cth). The Decision will be published on the internet. The Decision is public and a permanent record.

I attach the Form F50 for you to review. I will also express post this email and the form to your address today. If we do not hear anything from you by 4:00pm on Friday, 24 May 2019, a Decision dismissing you application will be published on the internet.

If you have any questions, please let me know…”

[19] No response was received to this email.

[20] To afford the Applicant with a final opportunity to respond to the Respondent’s s.399A application, my Chambers sent the Applicant a letter via email and express post on 3 June 2019. My Chambers also spoke to the Applicant via telephone on 3 June 2019 to confirm the Applicant’s postal address. The Applicant advised my Chambers of a new postal address.

[21] The letter of 3 June 2019 stated,

“… I have tried to contact you numerous times via telephone, email and post about your unfair dismissal application. You have previously advised me over the phone that you wish to withdraw your application. In order to formally withdraw your application you must file via post, email or in person to the Fair Work Commission a Form F50 ‘Notice of Discontinuance’. I attach it to this letter and will also send it to your above address you advised on the phone today. I also attach my most recent email sent to you on 17 May 2019.

I note that on 16 April 2019, the Respondent made an application under section 399A of the Fair Work Act 2009 (Cth) (FW Act). I also attach the Respondent’s application to dismiss the proceedings to this letter for your reference

…

Commissioner Johns DIRECTS you to lodge with the Commission, and serve on the Respondent, your reason/s for not complying with the Directions. Alternatively, you are invited to file a Form F50 if you wish to withdraw your unfair dismissal application.”

…

If you do not file any material or a Form F50 by 4:00pm on Friday, 14 June 2019, or, if your explanation is not reasonable, your application for relief from unfair dismissal will be dismissed and a decision will be published on the Fair Work Commission website.”

[22] This letter was delivered to the Applicant’s new address on 4 June 2019. The letter directed the Applicant to explain his failure to comply with my directions and further directed the Applicant to respond to the Respondent’s s.399A application by no later than 4:00pm on Friday, 14 June 2019.

[23] To date, there has been no response received from the Applicant.

[24] Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy on the bases that the Applicant has unreasonably failed to comply with a direction of the Commission.

[25] An order giving effect to this decision will be issued simultaneously with this decision.

COMMISSIONER

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