Mr Alex Lozanoski v Hymix Australia Pty Ltd

[2018] FWC 1528

[2018] FWC 1528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Mr Alex Lozanoski
v
Hymix Australia Pty Ltd
(U2017/13048)

DEPUTY PRESIDENT SAMS SYDNEY, 20 MARCH 2018

Application for an unfair dismissal remedy – application to dismiss substantive application for unreasonable failure to appear at a conference before the Commission – s 399A of the Fair Work Act – failure to attend conference without explanation – failure to attend conference unreasonable – application dismissed.

BACKGROUND

[1] This decision is in relation to an application made by Hymix Australia Pty Ltd, pursuant to s 399A of the Fair Work Act 2009 (the ‘Act’), to dismiss Mr Alex Lazonovski’s unfair dismissal application, which was lodged in the Fair Work Commission (the ‘Commission’) on 8 December 2018, on his behalf by the Transport Workers’ Union of Australia – New South Wales Branch (the ‘Union’).

[2] Mr Lozanoski’s (the ‘applicant’) was dismissed from Hymix Australia Pty Ltd (the ‘respondent’) on 20 November 2017. At the time of his dismissal, the applicant had been employed for approximately one year.

[3] It is not strictly necessary for the purposes of this decision, to describe in great detail the reasons for the applicant’s dismissal; suffice to say it involved an alleged altercation between the applicant and a colleague on 7 November 2017, which the respondent determined as misconduct on the applicant’s behalf. The applicant was dismissed for serious misconduct. He claimed his dismissal was ‘harsh, unjust and unreasonable’ within the meaning of s 387 of the Act.

[4] The respondent filed a response to the application (Form F3) on 20 December 2017. Again, it is not necessary for the purposes of this decision to describe the employer’s response in great detail. It is sufficient to observe that the respondent opposed the application, and further described the processes leading to the applicant’s dismissal for serious misconduct, as well as the particulars of the alleged misconduct.

[5] On 13 December 2018, the parties were advised that the matter was listed for a telephone conciliation, before a Fair Work Commission Conciliator on 10 January 2018. The Commission tried to contact the applicant via his representative on 5 January 2018 to obtain the preferred contact details for the telephone conciliation, but was unable to make contact. The Commission sent a letter to the applicant advising him that the Conciliator would contact the applicant and his representative on the numbers they provided in the unfair dismissal application. The Commission sent each of the parties a text message on 9 January 2018, reminding them that the conciliation was listed for the following day at 11.15am.

[6] Unfortunately, the conciliation did not proceed, as the applicant was not able to be contacted. The Commission was able to contact the applicant’s representative later that day by telephone. However, the Union said that they had also not been able to contact the applicant. The Commission then sent the applicant and his representative a letter advising them that if they did not contact the Commission within two days, the application would be allocated to a member for arbitration. The applicant did not respond to the letter.

[7] On 18 January 2018, the application was allocated to me for arbitration. In accordance with my usual practice, I issued directions for the filing of evidence and submissions on 24 January 2018, and listed the matter for a conciliation conference on 2 February 2018, and a hearing on 16 March 2018.

[8] Although the conference was originally listed to be in person, the respondent requested it be listed via telephone and the Union supported the request. The respondent expressed concern that the applicant may not attend, and it wanted to avoid unnecessary costs by attending in person should that eventuate. I granted the request and on 29 January 2018, I relisted the matter for telephone conference.

[9] Unsurprisingly, the respondent’s caution proved correct, and the applicant was unable to be contacted on 2 February, despite my Chambers calling him and leaving a voicemail message. Mr G Webb of the Union also advised the Commission that the Union had been unable to contact the applicant. Later that day, my Chambers emailed the applicant as follows:

I am emailing you in relation to the above matter. The matter was listed for conference today at 10am. You were advised of this listing on 29 January 2018 by email. Your Union has also been making unsuccessful attempts to contact you by phone and email. You failed to appear in the Commission today and were unable to be reached by telephone. His Honour requires an explanation from you as to why you did not appear at today’s conference. The Deputy President also notes that you failed to appear at the telephone conciliation that was listed before an FWC Conciliator on 10 January 2018. Please note, if an applicant to an unfair dismissal application unreasonably fails to appear at a conference, the Commission may, pursuant to s 399A of the Fair Work Act, dismiss the application.

You have until COB next Wednesday, 7 February 2018 to provide His Honour with a reasonable explanation for your non-attendance. A failure to do so will result in your application being dismissed without any further recourse to you. Alternatively, if you do not intend to pursue your unfair dismissal application, please fill out and sign the attached Notice of Discontinuance to Chambers.

To date, the applicant has not provided a response.

CONSIDERATION

[10] During the telephone conference on 2 February 2018, the respondent made an application pursuant to s 399A of the Act for the substantive application be dismissed on the basis that the applicant had failed to attend the conciliation on 10 January 2018, and the conference on 2 February 2018.

[11] Section 399A of the Act provides as follows:

‘(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.’

[12] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances; see: Allen v Army and Air Force Canteen Service[2013] FWC 9209 at [42] and Newbond v GM Holden Ltd[2015] FWC 6024 at [33].

[13] I have decided to exercise my discretion to dismiss the applicant’s unfair dismissal application. I do so on the basis I am satisfied that:

(a) the respondent has made an application in accordance with s 399A(2);

(b) in light of the history of the proceedings outlined above and the failure of the applicant to attend the conciliation on 10 January 2018 and the conference on 2 February 2018, without providing any explanation for such failure, the applicant has unreasonably failed to attend a conference conducted by the Commission (on 2 February 2018) in relation to his application; and

(c) the applicant has made no attempt to explain his absences and indeed has had no contact at all with the Commission.

CONCLUSION

[14] For the reasons set out above, the unfair dismissal application U2017/13048 lodged by Mr Alex Lozanoski is dismissed, pursuant to s 399A(1) of the Act.

DEPUTY PRESIDENT

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