Mr Dalmar Ali v Oz Halal Pty Ltd T/A Halal Help

[2018] FWC 2150

[2018] FWC 2150

FAIR WORK COMMISSION

DECISION

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

Mr Dalmar Ali
v
Oz Halal Pty Ltd T/A Halal Help
(U2017/11533)

DEPUTY PRESIDENT SAMS SYDNEY, 20 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 27 October 2017, Mr Dalmar Ali (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he seeks relief in respect to his alleged unfair dismissal on 9 October 2017. Mr Ali alleged that no reason has ever been given to him for his dismissal. He claimed that Mr Mohammed Rahman of Oz Halal Pty Ltd, knocked on his door on the night of 9 October 2017, and told him and three other work colleagues, (who were living in the same house), that they were all dismissed. It should be noted that two other unfair dismissal applications were made on the same terms, but by different applicants (Mr Ahmed Farah U2017/11532 and Mr Omar Jama U2017/11536).

[2] In accordance with the Fair Work Commission’s (the ‘Commission’) usual protocols, the application was listed for a telephone conciliation on 28 November 2017. On 27 November 2017, the respondent emailed the Commission seeking an adjournment:

REF: U2017/11532, U2017/11536, U2017/11533

With reference to the above, without any correspondence I have received three short messages from your department. I visited your website and contacted the customer Service Representative and after enquirer [sic] understood that they were related to unfair dismissal case.

I would like to advise and assure your department that we don’t engage or hire any individual personnel directly and we contract our requirements through third party Labour Hire Suppliers with a company and ABN number.

If you would call me I wont [sic] be able to remember anyone without looking at the records and advise who the supplier would have been. All I have at the moment is the reference numbers.

The easiest way to find out who they have been hired through it will very easy to find out using their bank financial statements which reflects their employers [sic] name as payee.

I am currently visiting my sick mother in The United States who was in the ICU and all of this was a bit of surprise for me. If you could please send me the complaints to my email [removed] then I will be able to respond appropriately as I won’t be back till end of December or January depending on the progress of my mother’s health.

I request you to please email me the complaints and setup [sic] a new date to allow me time for explanation and information.

[3] On 4 December 2017, the respondent filed a Form F3 – Employer’s Response to an Unfair Dismissal Application. In the F3, Mr Rahman raised a jurisdictional objection in relation to the application on the basis that the applicant was not employed by Oz Halal Pty Ltd. Curiously, Mr Rahman said that the applicant ‘may have been working as a contractor with Diini Help Pty Ltd’. In any event, the matter proceeded to a telephone conciliation, before a Commission Conciliator, but was unsuccessful. As a result, it was allocated to me for arbitration.

[4] On 10 January 2018, I listed the matter for a conference to be held via telephone, at 2pm on 25 January 2018. In the intervening period, on 19 January 2018, I received correspondence from Mr Henry Kwok of Chifley Advisory, notifying Chambers that Oz Halal Pty Ltd had been placed into liquidation on 4 January 2018, pursuant to a special resolution of the Company’s sole shareholder. Mr Kwok had been appointed ‘Joint and Several Liquidators’. On the date of the conference, neither Mr Ali, the respondent, nor any of the other applicants which had made similar applications, could be reached via telephone. Voicemail messages were left asking that they contact my Chambers.

[5] On 14 February 2018, my Chambers emailed the applicant as follows:

‘Dear Messrs Jama, Ali and Farah

I am emailing you in respect to each of your unfair dismissal applications against Oz Halal Pty Ltd t/a Halal Help.

The matter was listed for a mention/directions on 25 January 2018. Despite being notified of the mention on 10 January 2018, Chambers was unable to contact you via the telephone numbers you provided. Although Chambers left Voicemail messages, to date no response has been received.

In respect to the status of your applications, Mr Henry Kwok of Chifley Advisory, advised the Commission on 19 January 2018 that the Company was placed into liquidation on 4 January 2018, and he has been appointed joint Liquidator. He advised that the Liquidators do not intend on participating in these proceedings. It appears from the notices Mr Kwok provided in his correspondence to the Commission that the Company has entered voluntary liquidation. Relevantly to your applications, s 500(2)  of the Corporations Act provides as follows:

‘(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.’

Unfair dismissal proceedings are considered civil proceedings for the purpose of this section. The Commission is not a Court, and is therefore unable to grant leave for civil proceedings to proceed. Prima Facie, it appears that you will need to seek leave from a Court in order to press your unfair dismissal application. If you disagree, you are invited to provide submissions as to the jurisdiction of the Commission to hear your applications. Please advise Chambers by no later than 5pm on Monday 19 February ofyour intentions in respect to your applications. In particular, please advise Chambers whether any, or all of you, will seek leave from a Court to continue proceedings against the Company. Alternatively, if you seek to discontinue your application, please advise Chambers accordingly. Attached is an F50 for that purpose.’

To date, no correspondence has been received from Mr Ali, or any of the other applicants and there has been no communication from any of them to this date.

[6] The Commission’s power to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. I set out both sections:

SECTION 587

Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

SECTION 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.

[7] The power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because it results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his or her ‘day in court’.

[8] The power of the Commission to dismiss an unfair dismissal application, pursuant to s 399A of the Act is enlivened once an employer has made an application for the Commission to do so (s 399A(2)). In this case, no such application has been made. Indeed, the Company is in liquidation as the most recent correspondence received was from the Liquidators. That said, s 587 of the Act does not limit the grounds on which the Commission of its own motion, may dismiss an application. In the present case, despite several attempts to convene a telephone conference, and the unwillingness of the applicant to engage with the Commission, it is safe to assume the applicant has lost interest in pursuing his application.

[9] I should note, given the Company is in liquidation, that even if the applicant wanted to pursue his application, leave would be required by a Court, pursuant to s 471B of the Corporations Act before he could proceed with his application in the Commission. Given the applicant failed to attend a Conference before the Commission, return any phone calls from my Chambers, or even reply to Chambers’ correspondence, I have serious doubts the applicant would pursue that course. Perhaps this is a shame, as prima facie, if his version of events leading to his dismissal is correct, it is difficult to see how the dismissal would be found to be fair.

[10] Nevertheless, the Commission’s approach to circumstances of this kind was considered by the Full Bench in Peter Viavattene v Health Care Australia[2013] FWCFB 2532 where at paragraph [39] it was said:

‘There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is [a] respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).’ (footnotes omitted)

[11] Further, as Kirby J said in Allesch v Maunz (2000) 173 ALR 648 at [35] to [39]:

‘It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.

. . .

. . . it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to Act rationally in their own best interests.’

[12] In the exercise of my discretion, I dismiss application U2017/11533 for want of prosecution, under s 587 and pursuant to s 399A(1)(a) of the Act. I order accordingly.

DEPUTY PRESIDENT

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