Mohammad Arif v Australian Lamb Company

[2022] FWC 1236

[2022] FWC 1236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mohammad Arif
v

Australian Lamb Company

(U2021/11439)

COMMISSIONER CIRKOVIC MELBOURNE, 19 MAY 2022

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.

1. On 9 December 2021 Mr Mohammad Arif (the Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (“FW Act”) for a remedy, alleging he had been unfairly dismissed from his employment.

1. At the Case Management Conference listed on 11 April 2021, Mr Arif appeared for himself. Ms Jo McMahon appeared on behalf of the employer, Australian Lamb Company (the Respondent). Directions were issued for the filling of materials and the date for hearing was set for 31 May 2022. The directions issued to parties on that day required parties to submit:

• a written outline of their position;

• a witness statement from each witness intended to call to give evidence at the hearing; and

• a copy of any document intended to be relied upon.

1. The Applicant was due to file his evidence and submissions on 29 April 2022. On that day at 12:14AM and later at 1:43PM the Applicant filed one, double-paged, document being a “certificate of capacity”, a document issued by the Transport Accident Commission (TAC) and WorkSafe Victoria. No other submissions or materials were provided by the Applicant and the Respondent was not copied into the correspondence.

1. Following receipt of this document, Chambers wrote to the Applicant on 29 April 2022 as follows:

“Dear Mr Arif,

Chambers confirms receipt of the document below.

Chambers notes the directions issued to you dated 11 April 2022 required you to submit the following materials:

• a written outline of your position;

• a witness statement from each witness intended to call to give evidence at the hearing; and

• a copy of any document intended to be relied upon.

We note you have only submitted the single document below titled “Certificate of Capacity”. Please note a failure to comply with Directions is likely to disadvantage the party concerned; it could result in a matter being decided without regard to that side’s argument.

If you require additional time to prepare the materials requested in the directions, you are required to put this request in writing to Chambers and provide additional reasons for late lodgement.

Chambers also notes you did not copy in the Respondent when emailing the Commission. I have done so on this occasion, please do so going forward.”

1. No further material was filed by the Applicant to support his application. In fact, there has been no contact from the Applicant since 29 April 2022.

1. On 10 May 2022 the Respondent filed a Form F1 – application pursuant to s.399A of the FW Act to dismiss the Applicant’s application for unfair dismissal remedy. A copy of the application was served on the Applicant and directions were made for the Applicant to provide a written submission by 4:00pm on 18 May 2022. The Applicant did not respond to this email and did not provide any written submissions.

1. 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.

…

(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. In Lockyear v Graeme Cox [2021] FWCFB 875 at [57] the Full Bench found:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5.   A conference or hearing may be required where there are facts in disputehttps:// - P326_31692 and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. In this matter there are no facts in dispute that require me to conduct a hearing (per s.397).

1. Section 399A(2) is satisfied by the Respondent’s application of 10 May 2022. Similarly, s.399A(1)(b) is satisfied by the Applicant’s failure to comply with the directions of 11 April 2022 and the subsequent direction of 10 May 2022. The jurisdictional pre-requisites are met for the Applicant’s application to be dismissed[1] and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their ‘day in court’.[2]

1. The Applicant was placed on notice in the directions of 11 April 2022 that “failure to comply is likely to disadvantage the party concerned” and in the directions issued on 10 May 2022, the Applicant was warned that “if you don’t provide your reasons than 4:00pm on Wednesday 18 May 2022, your application could be dismissed without further notice.”

1. The Applicant did file something in accordance with the initial directions – being a purported certificate of capacity issued on 11 November 2021, however no other materials were received.

1. The Respondent is entitled to ask for finality. The Applicant has not taken up the opportunity to prosecute his case. In the circumstances, I see no utility in allowing the Applicant’s claim to continue, and I therefore grant the Respondent’s application under s.399A.

1. The Applicant’s application is therefore dismissed.

COMMISSIONER

[1] Lockyear v Graeme Cox [2021] FWCFB 875 at [55].

[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].

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