Mohamed Awad v Mary Donald Nominees Pty Ltd T/A Ground Support Systems (Aust)

[2017] FWC 6722

[2017] FWC 6722

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohamed Awad
v
Mary Donald Nominees Pty Ltd T/A Ground Support Systems (Aust)
(U2017/10486)

DEPUTY PRESIDENT DEAN SYDNEY, 19 DECEMBER 2017

Application for relief from unfair dismissal – applicant failed to comply with Directions of the Commission and failed to attend hearing – application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 27 September 2017, Mr Awad Awad made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 against Mary Donald Nominees Pty Ltd t/a Ground Support Systems (Aust) (Ground Support Systems).

[2] On 15 December 2017 I heard an application by Ground Support Systems to dismiss Mr Awad’s application pursuant to s.399A of the Act. At the conclusion of the hearing, I decided to dismiss Mr Awad’s unfair dismissal application, and indicated that I would provide written reasons for my decision. Below are my reasons.

[3] Mr Awad’s application was listed on 23 October 2017 for a conciliation conference by telephone. Ground Support Systems, their representative and Mr Awad’s representative were present at the conference however Mr Awad was uncontactable. As a result the conciliation did not proceed.

[4] The Commission made further unsuccessful attempts to contact Mr Awad on 30 October and 8 November 2017.

[5] On 9 November 2017 the Commission wrote to Mr Awad requesting him to advise whether he wished to proceed with his unfair dismissal application. Mr Awad’s representative confirmed, on 14 November 2017, that Mr Awad intended to proceed.

[6] The matter was then referred to Senior Deputy President Hamberger for arbitration. On 16 November 2017, parties were advised that a hearing would be held on 15 January 2018 and directions for the filing of material were issued.

[7] On 17 November 2017 Mr Awad’s representative filed a Form F54 notice of representative ceasing to act.

[8] The directions required Mr Awad to file and serve an outline of submissions, witness statements and other documentary material that he intended to rely on in support of his application by no later than 4pm on 7 December 2017. No material was filed in accordance with these directions.

[9] On 8 December 2017 the Commission telephoned Mr Awad and left a voicemail message advising him that his submissions and evidence were overdue. Mr Awad was again asked to contact the Chambers to advise whether he wished to proceed with his application. An email to the same effect was also sent to Mr Awad on this date. No response was received.

[10] On 12 December 2017 Ground Support Systems made an application pursuant to s.399A of the Act seeking that Mr Awad’s application be dismissed.

[11] The matter was then listed for a non-compliance hearing by telephone at 11am on 15 December 2017. Mr Awad was not contactable at the time of the hearing.

[12] 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 Mr Awad 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.

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.”

[13] Ms Harding, who appeared with permission on behalf of Ground Support Systems, submitted that Mr Awad’s unfair dismissal application ought be dismissed under s.399A(1)(a) as Mr Awad had failed to attend the non-compliance hearing without reasonable excuse or explanation. Ms Harding also submitted the unfair dismissal application ought be dismissed under s.399A(1)(b) as Mr Awad had failed to comply with directions of the Commission relating to his application.

[14] The oral submissions made in support of this application focused on the chronology of events set out above.

[15] Based on the chronology of events set out above and the submissions made by Ms Harding during the hearing, I was satisfied that:

a. Mr Awad unreasonably failed to attend a hearing conducted by the Commission in relation to his application; and

b. Mr Awad unreasonably failed to comply with directions of the Commission.

[16] Mr Awad’s application has been dismissed, and an order to that effect will issue with these Reasons.

DEPUTY PRESIDENT

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