Mr George Ezzam v Sydney Trains

[2021] FWC 1145

[2021] FWC 1145

FAIR WORK COMMISSION

DECISION

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

Mr George Ezzam
v
Sydney Trains
(U2020/15556)

DEPUTY PRESIDENT BULL SYDNEY, 12 MARCH 2021

Application for an unfair dismissal remedy - s.399A application - Applicant unreasonably failed to comply with Commission direction - application dismissed.

[1] On 3 December 2020, Mr George Ezzam (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been unfairly dismissed by Sydney Trains (the respondent). The application was filed by the then applicant’s representative the Rail Tram and Bus Union (NSW Branch) (RTBU).

[2] On 25 February, Sydney Trains made an application under s.399A to have the application dismissed pursuant to s.399A(1)(b), being that the applicant has failed to comply with a direction of the Commission.

Background

[3] The application was initially subject to a telephone conciliation before a Fair Work Commission conciliator on 21 December 2020, which did not resolve the matter. The matter was then allocated to my chambers on 8 January 2021.

[4] On 12 January 2021, my chambers sent a Notice of Listing to the applicant and respondent, along with directions. The directions listed a telephone mention and a hearing date, followed by dates for the filing of written submissions and witness statements. The directions noted that any request for an extension of time to file material must be made prior to the compliance date and be in writing and based on substantial grounds. The parties were also requested to confirm their attendance at the telephone mention and provide their direct contact details for the mention at least 24 hours prior to the mention taking place.

[5] On 20 January 2021, at 9:35am, my chambers sent an email to the parties, noting that the Commission has not received confirmation of the applicant’s attendees and contact details for the telephone mention and requested this detail.

[6] As no response was received from the applicant’s representative, (the RTBU), at around 2:00pm (one hour before the telephone mention was to commence), my Associate telephoned the applicant’s representative to see whether the applicant was attending the telephone mention and to confirm the contact details. The RTBU advised that it had had difficulties in obtaining instructions from the applicant, and that they would confirm this information as soon as possible.

[7] At 2:30pm, the RTBU sent an email to my chambers confirming that Mr Ezzam and the RTBU would be in attendance at the telephone mention and provided their contact details as previously requested.

[8] The telephone mention took place, after which amended directions were issued but did not alter the applicant’s requirement to file his material by 10 February 2021.

[9] On 5 February 2021, the RTBU sent an email to chambers advising that it no longer represented the applicant, Mr Ezzam.

[10] On 16 February 2021, the respondent sent an email to chambers, copying in Mr Ezzam, noting that in accordance with the Commission’s directions of 20 January 2021, Mr Ezzam’s materials were due to be filed on 10 February 2021, however no materials have been served.

[11] On 17 February 2021, my Associate telephoned Mr Ezzam to enquire why he had not filed his material and whether he wished to proceed with his unfair dismissal application. Mr Ezzam stated that he wished to proceed with his application.

[12] Immediately following this telephone conversation, chambers sent an email to Mr Ezzam in the following terms:

“Dear Mr Ezzam

I refer to the above matter, the below correspondence, and our telephone conversation this afternoon.

During the telephone conversation this afternoon, you advised that you wish to proceed with your application.

As per the Directions issued on 20 January 2021 (attached) you were directed to file and serve your materials in this matter on 10 February 2021. Nothing has been received by the Commission.

If you wish to proceed with your application, you must apply for an extension of time, providing reasons as to why you have failed to comply with the Commission’s directions by no later than 4pm Friday, 19 February 2021.

If an extension of time is granted, then you must file and serve your materials in this matter.

Failure to comply with the Commission’s directions may result in your application being dismissed.”

(My underline)

[13] On 19 February 2021, at 4:07pm Mr Ezzam telephoned chambers and requested an extension of time to file his material. No reason for the request was provided. Chambers advised Mr Ezzam that any request for an extension of time must be in writing, copying in the respondent, so that the Commission may consider the request.

[14] No written request was subsequently made and no material was filed in accordance with the Commission directions.

S.399A application

[15] On 25 February 2021, chambers received an application pursuant to s.399A of the Act from the respondent’s representative to dismiss the unfair dismissal application. The applicant was copied in on the application.

[16] Later that day, chambers sent an email to Mr Ezzam stating:

“Dear Mr Ezzam

I refer to the above matter and the respondent’s application to dismiss the proceedings pursuant to s.399A of the Fair Work Act (attached).

You are directed to provide a response to this application by no later than 4pm on Wednesday, 3 March 2021.

If you do not wish to file a response and wish to discontinue these proceedings, please complete and return the attached Form F50 – Notice of Discontinuance.”

[17] Mr Ezzam did not provide a response by 3 March 2021, to the s.399A employer application as requested.

[18] On 4 March 2021 my chambers sent an email to Mr Ezzam stating that based on his failure to file his material as directed and the respondent having made an application pursuant to s.399A of the Act, if he wished to file any objection to his application being dismissed he was to do so by 4:00pm on 8 March 2021.

[19] At 3:20pm on 8 March 2021, Mr Ezzam telephoned chambers advising that he wanted an extension of time as he was trying to find a lawyer. Mr Ezzam was again advised that an extension of time request needs to be put in writing, with a copy to the respondent, and that it cannot be granted over the telephone.

[20] Following this advice, no further contact from the applicant to chambers has been made.

Legislation

[21] 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 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.”

Conclusion

[22] The applicant has been put on notice by the Commission 1 that his application may be dismissed on the basis of his non-compliance with the direction to file his material by 10 February 2021. The applicant was made aware that the respondent has made application to have his application dismissed on the basis of his non-compliance with the Commission’s directions.

[23] While Mr Ezzam has advised by telephone that he wishes to pursue his application and is trying to find a lawyer, there has been no compliance with the direction to file his material and no explanation for this failure and no written request for an extension of time to comply.

[24] Mr Ezzam has been provided every opportunity to comply with the directions of the Commission and has not done. I am therefore satisfied that as of the date of this decision, Mr Ezzam has unreasonably failed to comply with the Commission’s direction made on 12 January and amended on 20 January 2021 to file and serve on the respondent an outline of submissions and witness statement/s in support of his application by 10 February 2021, or at any time thereafter.

[25] For the above reasons, the Commission is satisfied that it should grant the respondent’s application to have the matter dismissed.

[26] Pursuant s.399A of the Act and on the ground contained at s.399A(b), Mr Ezzam’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

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 1   Email of 17 February 2021