Maake Taukolo Tonga v BLH NSW Pty Ltd

[2019] FWC 4978

[2019] FWC 4978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maake Taukolo Tonga
v
BLH NSW Pty Ltd
(U2019/2578)

COMMISSIONER JOHNS SYDNEY, 17 JULY 2019

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

[1] On 7 March 2019, Mr Maake Taukolo Tonga (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 BLH NSW Pty Ltd (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 in or around January 2016 as a construction worker. On 14 February 2019, the Respondent notified the Applicant of their intention to dismiss the Applicant. The dismissal took effect the following day on 15 February 2019.

[3] On 29 March 2019, Mr Dayne Syron of the CFMMEU filed a Form F54 ceasing to act as union representative for the Applicant.

[4] On 10 April 2019, the Respondent lodged a Form F3 in response to the Applicant’s application.

[5] Various attempts at conciliation before a conciliator of the Commission were attempted in the months of April, May and June 2019. However, conciliation did not prove to be successful due to party unavailability.

[6] On 18 June 2019, Vice President Catanzariti allocated the matter to me. Later that same day, my Chambers sent a notice of listing via email to the parties, listing the matter for a mention and/or directions hearing scheduled to take place at 3:00pm on 25 June 2019. Due to the Respondent’s unavailability on 25 June 2019 at this time, the matter was rescheduled for 26 June 2019 at 2:00pm. An amended notice of listing was sent via email to the parties on 21 June 2019 and also via express post to the Applicant. It was delivered by Australia Post to the Applicant’s address nominated on his Form F2 application on 24 June 2019.
[7] At the scheduled mention/directions hearing on 26 June 2019, neither the Applicant nor any representative on his behalf appeared. Due to the Applicant’s absence, my Chambers called the Applicant’s mobile twice; however, this was to no avail. A voice message was left urging him to return our calls immediately. The Applicant did not return our calls. The Respondent was represented by Ms Yasmin Hafza, Human Resource Manager of the Respondent. Despite the Applicant’s absence, the mention/directions hearing proceeded. The Respondent made an oral s.399A application on transcript to have the Applicant’s s.394 application for an unfair dismissal remedy dismissed.

[8] 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.”

[9] To afford the Applicant with notice and an opportunity to respond to the Respondent’s s.399A application, my Chambers sent the Applicant a letter via email and express post on 27 June 2019.

[10] The letter of 27 June 2019 stated,

“We refer to the Mention/Directions Hearing held via telephone in relation to your unfair dismissal application on Wednesday, 26 June 2019 at 2:00pm (AEST). You did not attend. Attempts to contact you via your mobile were unsuccessful. We left a voicemail on your message bank urging you to return our calls immediately. You did not return our calls. We also note that you have not attended various scheduled conciliation appointments at the Fair Work Commission in the past. Further, we attempted to make contact on various occasions in the week leading up to the Mention/Directions Hearing to confirm your attendance. However, we have been unable to make contact with you.

You were directed to attend the Mention/Directions telephone Hearing by the Fair Work Commission. The Notice of Listing was sent to your email on Friday, 21 May 2019 and delivered to your address…

…

At the Mention/Directions Hearing the Respondent made an application under section 399A of the Fair Work Act 2009 (Cth) (FW Act).

…

Commissioner Johns DIRECTS you to lodge with the Commission, and serve on the Respondent, your reason/s for not attending the Mention/Directions Hearing (i.e. your non-compliance with the Notice of Listing).

…

If you do not file this material by 4:00pm on Friday, 5 July 2019, or, if your explanation is not reasonable, your application for relief from unfair dismissal will be dismissed.”

[11] The letter was delivered by Australia Post to the Applicant’s address listed on his Form F2 application on 28 June 2019. The letter directed the Applicant to explain his failure to attend the hearing of 26 June 2019 by no later than 4:00pm on Friday, 5 July 2019.

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

[13] Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s s.394 application for an unfair dismissal remedy on the bases that the Applicant has unreasonably failed to attend a hearing held by the Commission; and further, the Applicant has unreasonably failed to comply with a direction of the Commission.

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

COMMISSIONER

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