Mr Hasan Suleyman v Coles Group Limited Summary

[2023] FWC 389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Hasan Suleyman
v

Coles Group Limited

(U2022/12165)

COMMISSIONER JOHNS

MELBOURNE, 16 FEBRUARY 2023

Application for an unfair dismissal remedy - Section 399A - Dismissing Applications - Failure to attend hearing held by the Commission - Failure to comply with a direction of the Commission.

On 22 December 2022, Hasan Suleyman (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Application was made in respect of his employment at Coles Group Limited (the Respondent).

The Applicant commenced working for the Respondent in September 2018. On 13 November 2022, the Respondent notified the Applicant by letter of their intention to dismiss the Applicant. The dismissal took effect on 2 December 2022.

On 18 January 2023, the Respondent lodged a Form F3 response to the Applicant’s application.

On 25 January 2023, a conciliation was scheduled before a conciliator of the Fair Work Commission (Commission), however, the Applicant wrote to the Commission advising that he did not want to attend.

On 23 January 2023, the matter was allocated to me by Commissioner Bissett. On 25 January 2023, I sent the parties a notice of listing, listing the matter for a mention/directions hearing at 10:00 am (AEDT) on Wednesday, 8 February 2023.

At the hearing, the Applicant failed to attend. At the commencement of the hearing, my Associate called the Applicant two times and left a voice message advising him that the hearing had commenced at 10:00 am and requesting that the Applicant call him back.

Despite the Applicant’s absence, the hearing proceeded with the Respondent. At the hearing, the Respondent made an oral s.399A application on transcript to have the Applicant’s s.394 application for an unfair dismissal remedy dismissed.

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.

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.”

To afford the Applicant with an opportunity to respond to the Respondent’s application to dismiss, I sent the Applicant a letter via email to the email address nominated on his Form F2 Application on 9 February 2023. The letter directed the Applicant to explain his failure to attend the mention/direction hearing by no later than 5:00 pm on 15 February 2023.

To date, neither my Chambers nor the Commission Registry has received any response from the Applicant.

Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy on the bases that the Applicant has unreasonably failed to attend a hearing held by the Commission, and further, unreasonably failed to comply with a direction of the Commission.

An order giving effect to this decision will be issued simultaneously with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Hasan Suleyman, sought an unfair dismissal remedy under section 394 of the Fair Work Act 2009 against Coles Group Limited, following his termination of employment. The applicant's application was lodged with the Fair Work Commission, which scheduled a conciliation and subsequently a mention/directions hearing. The applicant did not attend either hearing and did not respond to the Commission's notice requesting an explanation for his non-attendance. The respondent then made an application under section 399A of the Act for the dismissal of the applicant's unfair dismissal application.
The legal issue before the Commission was whether the applicant had unreasonably failed to attend the mention/directions hearing and to comply with a direction of the Commission. The Commission considered whether the applicant's failure to attend and respond amounted to unreasonable behaviour and whether the dismissal of the application was an appropriate remedy.
The Commission found that the applicant had unreasonably failed to attend the mention/directions hearing and to comply with a direction of the Commission. The Commission noted that the applicant had been given an opportunity to respond to the respondent's application to dismiss and to explain his failure to attend, but had not done so. The Commission held that the applicant's failure to attend and respond was unreasonable and that the dismissal of the application was an appropriate remedy. The Commission dismissed the applicant's application for an unfair dismissal remedy.
In light of the dismissal of the applicant's application, an order will be issued by the Commission to that effect. The order will reflect the decision made by the Commission and will bring the proceedings to an end. The respondent is not required to take any further action in response to the order.

Mr Hasan Suleyman v Coles Group Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established