Martin Slobodnik v Sherrin Rentals Pty Ltd

[2019] FWC 6790

[2019] FWC 6790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Martin Slobodnik

v

Sherrin Rentals Pty Ltd

(U2019/7709)

DEPUTY PRESIDENT CROSS SYDNEY, 4 OCTOBER 2019

Application for an unfair dismissal remedy.

1. On 12 July, 2019, Mr Martin Slobodnik (the “Applicant”) made an application for an unfair dismissal remedy, pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant was employed by Sherrin Rentals Pty Ltd (the “Respondent”) from December, 2018, and was dismissed on 12 July, 2019.

1. On 28 July, 2019, the Respondent filed an Employer Response (Form F3) opposing the application.

1. The matter was listed for conciliation, by telephone, before a conciliator on 13 August, 2019.  The matter did not settle at that conciliation.  The matter was then allocated to me for determination by way of arbitration.   

1. On 21 August, 2019, Directions (“the Directions”) were issued from my Chambers to the parties in the following terms:

“The Applicant (Mr Martin Slobodnik) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of their application in this matter by no later than 4.00pm on 11 September 2019.

The Respondent (Sherrin Rentals Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 2 October 2019.

The Applicant (Mr Martin Slobodnik) is directed to file with the Fair Work Commission, and serve on the Respondent, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by no later than 4.00pm on 9 October 2019.” (Original emphasis).

1. No such material, or any explanation for the delay, was provided to my Chambers from the Applicant by 11 September, 2019.  As such, my Chambers issued correspondence on 17 September, 2019, to the Applicant in the following terms:

“Dear Applicant,

I refer to the above matter.

Chambers notes that your outline of submissions and supporting evidence were due by

4.00pm on 11 September 2019 as per the Directions.  Your submissions are now

overdue. 

Chambers requests that you kindly file a copy of same as a matter of priority. 

Alternatively, you can advise that you wish you no longer wish [sic] to pursue your

application against your former employer by filing a Notice of Discontinuance.”

(Original emphasis).

1. On same date, my Chambers received the following correspondence from the Applicant:

“I will have everything completed and sent to yourself by COB Monday 23/09/2019

Thank you.

Kind regards,

Martin Slobodnik”

1. Again, no such material was filed by the Applicant on 23 September, 2019, nor did the Applicant provide any explanation for the delay.

1. On 25 September, 2019, further correspondence was sent to the Applicant from my Chambers in the following terms:

“Dear Mr Slobodnik,

Chambers has not received your outline of submissions nor any supporting materials

to date. Please advise if it is your intention that you no longer wish to file any

materials in support of your application.

Regards,”

1. On 26 September, 2019, the matter was listed for Hearing on 17 October, 2019.  A Notice of Listing reflecting those details was issued to the parties. 

1. On 30 September, 2019, I issued correspondence from my Chambers to the Applicant, as below:

“Dear Mr Slobodnik,

…

Chambers can confirm that no submissions or any supporting materials have been received from you to date.  As such, the Deputy President has directed that you file your materials, if you still intend to do so, by 4.00pm tomorrow (1 October 2019).  A failure to do so may result in your application being dismissed.”

1. To date, there has been no further communication from the Applicant.

1. Section 399A of the Act provides:

“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. The power to dismiss an application where there is an unreasonable or explained non-compliance with the Commission’s listings or directions is exercisable by the Commission. So much so is evident by the express language used in s.399A(1)(b) of the Act. Further, as Deputy President Colman observed in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy[2019] FWC 6264, at paragraph [19]:
   
   

   “[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.”

1. The Applicant has provided no reason whatsoever, let alone a sufficient reason, for his failure to file his outline of submissions and any supporting materials pursuant to the Directions, nor by the date he himself had proposed.  He has displayed, in my view, a complete indifference to prosecuting his claim. 

1. Given the circumstances described above, I am satisfied that I should exercise my discretion under s.399A(1)(b) of the Act and dismiss the Applicant’s unfair dismissal application. Accordingly, the Directions are formally discharged, and the Hearing date of 17 October, 2019, is vacated.

DEPUTY PRESIDENT

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