Mark Grljusich v Buick Holdings T/A DVG Midland City Hyundai

[2018] FWC 809

[2018] FWC 809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Grljusich
v
Buick Holdings T/A DVG Midland City Hyundai
(U2017/12730)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 29 November 2017, Mr Mark Grljusich made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Grljusich said he was notified of his dismissal on 2 November 2017, with the dismissal taking effect on 9 November 2017.

[2] The matter was listed for conciliation on 22 December 2017, however despite seven attempts to telephone Mr Grljusich, he could not be contacted.

[3] On 3 January 2018, Buick Holdings raised a jurisdictional objection that the completed application filed by Mr Grljusich was nine days out of time. The following day, parties were sent a Notice of Listing which advised the Conference/Hearing dates and also the Requirements to file material. Mr Grljusich was sent the Notice via post and email and was directed to file an Outline of Argument: Extension of Time, Statement of Evidence and Document List by no later than noon on 12 January 2018.

[4] As no material had been filed, on 15 January 2018, the Fair Work Commission telephoned Mr Grljusich, however there was no answer and no option to leave a voicemail message. An email was then sent to Mr Grljusich which confirmed no material had been received. Mr Grljusich was asked to advise when he intended to file his submissions and that in the absence of a reply, his matter may be listed for a non-compliance hearing.

[5] On 16 January 2018, an attempt to telephone Mr Grljusich was made and an SMS message and email were sent requesting a return call. The email again noted that if no contact was made, Mr Grljusich’s matter may be listed for a non-compliance hearing on 19 January 2018. The following day, another email was sent which noted if there was no reply by 2.00pm that day, the matter would be listed for a non-compliance hearing on 19 January 2018. A voicemail message was also left for Mr Grljusich requesting he telephone the Commission for further information about the non-compliance hearing. Later that day, a Notice of Listing was sent to the parties advising the non-compliance hearing would be taking place via telephone at 9.00am (WST) on 19 January 2018.

[6] The non-compliance hearing proceeded before Deputy President Colman on 19 January 2018. Mr Grljusich could not be contacted. Buick Holdings made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Grljusich had failed to comply with a direction of the Commission. Deputy President Colman waived compliance with the Fair Work Commission Rules 2013 and accepted Buick Holdings’ oral application. Correspondence was then sent to Mr Grljusich, informing him of Buick Holdings’ s.399A application. Mr Grljusich was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 29 January 2018. This correspondence was sent to Mr Grljusich via email and post.

[7] To date, Mr Grljusich has not filed any material with the Commission.

[8] 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.

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

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

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Grljusich has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, Mr Grljusich has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with Requirements or his non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Grljusich’s application.

[12] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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