Mladen Sekuloski v Cash Converters (Stores) Pty Ltd T/A Cash Converters

[2018] FWC 484

[2018] FWC 484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mladen Sekuloski
v
Cash Converters (Stores) Pty Ltd T/A Cash Converters
(U2017/10925)

COMMISSIONER BISSETT MELBOURNE, 23 JANUARY 2018

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 12 October 2017 Mr Mladen Sekuloski (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he said he had been unfairly dismissed by Cash Converters (Stores) Pty Ltd T/A Cash Converters (the Respondent).

[2] The matter was listed for Conciliation conference before a staff conciliator on 2 November 2017. On 1 November 2017 the Applicant sought, and was granted, an adjournment of the conciliation. The matter was further listed for a conciliation conference on 20 November 2017. On 13 November 20917 the Applicant email the Commission requesting a further adjournment of the conciliation conference. Attempts to contact the Applicant to discuss this request on 15 November 2017 were not successful. The conciliation proceeded on 20 November 2017 however the Applicant did not attend and attempts to contact him were not successful.

[3] On 24 November 2017 the Respondent made an application to the Commission to dismiss the unfair dismissal application pursuant to s.399A of the FW Act on the grounds that the Applicant had failed to prosecute his claim. This application was not granted.

[4] Directions for the filing of submissions and witness evidence were sent to the Applicant by email on 27 November 2017. On 3 January 2018 an SMS message was sent to the Applicant reminding him that his submissions were due to be filed by noon Thursday 4 January 2018. Several attempts were also made to contact the Applicant by phone but the phone number provided by the Applicant did not ring.

[5] As no material had been received by noon on 4 January 2018, an email was sent to the Applicant on 5 January 2018 regarding the outstanding submissions. The Applicant was advised that he should contact the Commission as soon as possible to advise when he intended to file his submissions otherwise the matter would be listed for a Non-compliance hearing.

[6] A further attempt to contact the applicant was made on 8 January 2018 without success.

[7] As no material had been filed, the matter was listed for a Non-compliance hearing before Commissioner Wilson on 12 January 2018. Despite attempts to contact the Applicant, the Applicant did not attend. The Respondent made an oral application, pursuant to s.399A of the FW Act, that the matter be dismissed as the Applicant had failed to comply with the direction of the Commission. Correspondence was sent to the Applicant, via express post, informing her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Monday 15 January 2018.

[8] The Applicant did not file any material with the Commission by the due date.

[9] 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

[10] Section 593(1) of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act.

[11] I am satisfied that the Applicant has failed to comply with a direction of the Commission relating to her application. That direction went to the date by which she was required to file and serve material in relation to her application for unfair dismissal. Further, I am satisfied that the Applicant failed to attend a Non-compliance Hearing in relation to her application and has failed to file any material in opposition to the application to dismiss.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to the many attempts by the Commission to contact her. The Applicant has shown a lack of willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with directions or her non-attendance at the non-compliance hearing. Accordingly, the application is dismissed. An Order 1 to this effect will be issued shortly.

COMMISSIONER

 1   PR599775.

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