Luis Quintero v Kaplan Business School Pty Limited

[2023] FWC 2760

[2023] FWC 2760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Luis Quintero
v

Kaplan Business School Pty Limited

(U2023/7079)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 24 OCTOBER 2023

Application under s 399A – failure to attend a hearing – application dismissed.

1. This decision concerns an application made under s 399A of the Fair Work Act 2009 (Cth) (Act) by Kaplan Business School Pty Limited to dismiss an unfair dismissal application brought against it by Mr Luis Quintero.

1. For the reasons that follow, the respondent’s application under s 399A is granted. Mr Quintero’s application for an unfair dismissal remedy is dismissed.

Procedural context

1. On 2 August 2023, Mr Quintero made an application for an unfair dismissal remedy pursuant to s 394 of the Act. Mr Quintero alleges that he was unfairly dismissed by the respondent.

1. On 15 August 2023, the respondent filed its Form F3 response to Mr Quintero’s application. The respondent denies Mr Quintero was unfairly dismissed. It submits that Mr Quintero was afforded procedural fairness and was dismissed because Mr Quintero ceased performing his duties, failed to provide any materials to substantiate his absence from work and breached his employment contract.

1. Directions were issued on 8 September 2023 for the filing of materials in respect of the merits of Mr Quintero’s application. The directions were accompanied by a notice of listing confirming the time, date and method of the hearing.

1. The directions required Mr Quintero to file materials in support of his unfair dismissal application by 4:00pm on 22 September 2023, however no materials were received by the Commission on this date. In the absence of any correspondence from Mr Quintero explaining his non-compliance, my Chambers made multiple attempts to contact Mr Quintero by telephone on 3 October 2023, leaving detailed voice messages on each occasion.

1. Also on 3 October 2023, an email was sent to Mr Quintero advising that the Commission had not received any material in support of his application, and that such materials were due to be filed on 22 September 2023. Nor had a request for an extension of time been made by Mr Quintero. Mr Quintero was requested to provide a response by 4:00pm on 4 October 2023.

1. Mr Quintero sent an email to my Chambers at 1:58pm on 4 October 2023 advising that he has concerns relating to whistleblower protections and was unsure how to proceed with his application. My Chambers telephoned Mr Quintero on 4 October 2023. During this telephone call, Mr Quintero said that he did not receive the 8 September 2023 directions. During the call, my Chambers resent the directions to Mr Quintero, who confirmed receipt of the email and attached directions. Mr Quintero also advised my Chambers of his intention to obtain legal advice in respect of his application.

1. On 6 October 2023, Mr Quintero sent an email to my Chambers in which he advised that he has an appointment “for legal representation” on 12 October 2023 and that he will “be in touch.” Mr Quintero’s email was not accompanied by any material in support of his application, and nor did Mr Quintero make a request for an extension to the timeline contained in the directions.

1. On 9 October 2023 I caused an email to be sent to Mr Quintero which relevantly provided the following directions and listed the matter for a non-compliance hearing:

“The Deputy President has considered Mr Quintero’s response and is not satisfied that Mr Quintero has provided any explanation for his non-compliance with the attached directions.

Mr Quintero’s evidence and submissions in support of his unfair dismissal application were due to be filed and served by 22 September 2023.  An extension of time has not been granted by the Deputy President, and nor has an extension of time been sought by Mr Quintero.

Mr Quintero’s statement that he will simply “be in touch” after he meets with a lawyer on 12 October 2023 is not an acceptable basis for an extension of time.

Next steps: Non-compliance hearing

In light of Mr Quintero’s non-compliance with the directions of the Commission, the matter will proceed to a non-compliance hearing at 2:00pm on Friday 13 October 2023.  A Notice of Listing is attached to this email. The parties are each requested to confirm the attendance of those who will attend the non-compliance hearing which will be conducted by Microsoft Teams.

At the non-compliance hearing, Mr Quintero will be required to give evidence as to why he has not complied with the Commission’s directions to file material in his application. If Mr Quintero fails to attend, or his explanation is not satisfactory, Mr Quintero’s application for an unfair dismissal remedy may be dismissed on account of his non-compliance.”

(emphasis omitted)

1. The non-compliance hearing was scheduled to take place online through Microsoft Teams at 2:00pm on 13 October 2023. Prior to the hearing commencing, my Chambers made a telephone call to Mr Quintero at 12:53pm which was unanswered. A voicemail was left seeking confirmation of Mr Quintero’s attendance at the non-compliance hearing that afternoon. Shortly before 2:00pm, the respondent connected to the virtual hearing room in accordance with the details provided on the notice of listing. At the time the hearing was due to commence, Mr Quintero had not announced his attendance.

1. My Chambers made three attempts to contact Mr Quintero by telephone between 2:00pm and 2:10pm. Each call went unanswered. The matter was called on at around 2:12pm, absent Mr Quintero.

1. During the hearing, the respondent made an application to dismiss Mr Quintero’s application for an unfair dismissal remedy, having regard to Mr Quintero’s non-attendance at the non-compliance hearing. I took this to be an application pursuant to s 399A of the Act (s 399A Application). I waived compliance with the Fair Work Commission Rules 2013[1] and accepted the oral application made by the respondent.

1. Following the hearing, I caused an email to be sent to Mr Quintero which noted his non-attendance at the non-compliance hearing and the attempts made to contact him. The email explained that the respondent had made the s 399A Application and provided the following directions for its determination:

“What happens next?

The applicant is now being given an opportunity to respond to the s 399A Application.

Deputy President Millhouse directs the applicant to file with the Commission and serve on the respondent an explanation as to why the Commission should not dismiss his unfair dismissal application. The applicant must file and serve evidence or other material to support his position. For example, if the applicant is or has been unwell, the Commission requires a medical certificate.

The applicant’s material is required by close of business Friday 20 October 2023.

If the applicant files any material by this date, the respondent will be invited to submit any materials in reply.

Important note

The applicant is advised that if he fails to provide any material in response to the s 399A Application, the Commission may proceed to deal with the s 399A Application on the material before it. This may result in the dismissal of the applicant’s claim for an unfair dismissal remedy.”

(emphasis omitted)

1. Mr Quintero did not file any material in response to the s 399A Application, and has not otherwise engaged with the Commission in relation to his application for an unfair dismissal remedy.

Consideration

1. 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.

1. Section 399A was the subject of consideration by the Full Bench in Lockyear v Cox[2] where it was relevantly said as follows:

[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. Mr Quintero was informed of the s 399A Application the day that it was made by the respondent and has been given an adequate opportunity to respond to it. The 13 October 2023 correspondence to Mr Quintero made it clear that the Commission would proceed to determine the s 399A Application in the absence of any response from him. I am satisfied that the first three steps set out in Lockyear v Cox have been met. I turn now to consider the s 399A Application.

1. Mr Quintero has not filed a response to the s 399A Application. I therefore conclude that Mr Quintero has not provided a reasonable explanation for his non-attendance at the non-compliance hearing on 13 October 2023. I am satisfied, for the purposes of s 399A(1)(a) of the Act, that Mr Quintero’s failure to attend the hearing on 13 October 2023 was unreasonable.

1. Accordingly, I am empowered to exercise the discretion afforded pursuant to s 399A of the Act to dismiss Mr Quintero’s application for an unfair dismissal remedy. While such discretion is to be exercised with caution, I am satisfied that it should be exercised having regard to the following circumstances:

(a)Mr Quintero unreasonably failed to attend the non-compliance hearing on 13 October 2023;

(b)the Commission has afforded Mr Quintero an adequate opportunity to respond to the s 399A Application or otherwise engage with the Commission about his unfair dismissal application; and

(c)Mr Quintero has been on notice of the consequences of his non-compliance since 13 October 2023.  

1. I further observe that Mr Quintero has not complied with the Commission’s directions to file material in respect of his application for an unfair dismissal remedy. While Mr Quintero did email my Chambers on 4 October and 6 October 2023, he did not provide any explanation for his non-compliance with the directions, and he did not seek an extension of time for filing his materials in support of his application.

Order and disposition

1. For the reasons given, the respondent’s application under s 399A is granted.

1. Mr Quintero’s application for an unfair dismissal remedy is dismissed pursuant to s 399A(1) of the Act.

DEPUTY PRESIDENT

[1] Rule 6(1)

[2] [2021] FWCFB 875

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