Mohammad Shafai v Kingston City Council

[2017] FWC 3413

[2017] FWC 3413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammad Shafai
v
Kingston City Council
(U2017/4098)

COMMISSIONER BISSETT MELBOURNE, 27 JUNE 2017

Application for relief from unfair dismissal – s.399A application to dismiss.

[1] On 13 April 2017 Mr Mohammad Shafai made an application to the Fair Work Commission (the Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the FW Act). Mr Shafai was dismissed from his employment with Kingston City Council on 6 April 2017. Kingston City Council lodged a jurisdictional objection on 26 April 2017 on the grounds that Mr Shafai did not serve the minimum employment period and was employed as a casual employee not engaged on a regular and systematic basis.

[2] The matter was the subject of conciliation where it was not resolved. Consequently directions were issued and the matter was listed for Jurisdiction Hearing.

[3] Mr Shafai was directed to file submissions and evidentiary materials in opposition to the jurisdictional objection by no later than noon on Thursday, 8 June 2017. Mr Shafai failed to comply with this direction.

[4] The Commission wrote to Mr Shafai on 9 June 2017 regarding his failure to file submissions by the required date. Mr Shafai failed to respond to the Commission’s correspondence. On 16 June 2017 further correspondence was sent to Mr Shafai reminding him that his application was set down for hearing that afternoon for the purpose of determining the jurisdictional objection and should he fail to attend the hearing or contact the Commission his application may be dismissed. Mr Shafai once again failed to respond to the Commissions’ correspondence.

[5] The Jurisdiction Hearing was listed on 16 June 2017. Mr Tallboys attended with permission for Kingston City Council in the matter however there was no appearance by Mr Shafai or anyone on his behalf. Attempts to contact Mr Shafai on the mobile and home telephone numbers provided in his s.394 application were unsuccessful. At the hearing Kingston City Council made an application, pursuant to s.399A of the FW Act, that the matter be dismissed as Mr Shafai had failed to comply with a direction of the Commission.

[6] On 16 June 2017, the Commission wrote to Mr Shafai informing him of Wave Leisure Centre’s s.399A application. Mr Shafai was directed to provide a written explanation for his non-attendance at the hearing and any submissions he wished to make as to why his application should not be dismissed by 4.00 pm on Friday, 23 June 2017. No response was received from Mr Shafai.

[7] Section 399A of the FW 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.

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.

[8] Despite numerous requests and attempts to contact Mr Shafai, he has not responded. Mr Shafai has shown no willingness to prosecute his case. He has provided no explanation of his failure to attend the Jurisdiction Hearing on 16 June 2017 or why his application should not be dismissed nor has he complied with the direction to file material.

[11] After considering all the material, I have decided to dismiss Mr Shafai’s application pursuant to s.399A(1)(a) and (b) of the FW Act. An order 1 giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

No appearance for Mr Shafai.

B. Tallboys for Kingston City Council.

Hearing details:

2017.

Melbourne:

June 16.

 1   PR594089.

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<Price code A, PR594083>