Mr Houman Bassari v Sonic Health Plus

[2019] FWC 1378

[2019] FWC 1378

FAIR WORK COMMISSION

DECISION

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

Mr Houman Bassari
v
Sonic Health Plus
(U2018/12593)

DEPUTY PRESIDENT BINET PERTH, 7 MARCH 2019

Application for an unfair dismissal remedy – failure to attend a conference – application to dismiss pursuant to s.399A – application dismissed.

[1] On 4 December 2018, Mr Houman Bassari (Mr Bassari) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Sonic Health Plus (Sonic).

[2] On 10 January 2019, telephone conciliation was scheduled between Mr Bassari and Sonic with a FWC staff conciliator. Mr Bassari failed to appear. The following day Mr Bassari emailed FWC advising that his car had been broken into and his laptop, phone and wallet were stolen. Mr Bassari advised that he had been in touch with Sonic and they were agreeable to the relisting of the Conference.

[3] On 5 February 2019, a further telephone conciliation was scheduled with a FWC staff conciliator. Mr Bassari again failed to attend.

[4] The Application was allocated to Deputy President Binet and on 14 February 2019, the parties were issued with a Notice of Listing directing them to attend a conference at 12pm on Monday, 25 February 2019.

[5] Ms Raquel Rogriguez of Sonic appeared in person at the offices of the FWC. Mr Bassari failed to attend the Conference. My Associate endeavoured to contact Mr Bassari both on his mobile phone number and by email. Mr Bassari did not respond to either the voicemail message left on Mr Bassari’s phone or the email.

[6] On Monday 25 January 2019, Chambers emailed the parties noting that Mr Bassari had not attended the Conference as directed and inviting Sonic to apply by 4pm on Tuesday 26 January 2019 for the Application to be dismissed pursuant to section 399A of the FW Act (Dismissal Application). Mr Bassari was invited to make written submissions in response to the Dismissal Application by 4pm on Wednesday 27 January 2019. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the Dismissal Application.

[7] 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).

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.”

[8] Sonic filed in the FWC a Form F1 on Tuesday 26 February 2019, forwarding a copy to Mr Bassari (Dismissal Application).

[9] Chambers forwarded a copy of the Dismissal Application to Mr Bassari the same day and reminded him that he should file submissions providing reasons why the FWC should not dismiss his application and evidence or other documentary material supporting those reasons by 4pm Wednesday 27 February 2019.

[10] Mr Bassari was also notified that if he did not comply with the directions and file submissions by this date, that his application for an unfair dismissal remedy would be dismissed.

[11] To date the FWC has not received any further communication from Mr Bassari

[12] The Explanatory Memorandum states the FWC may exercise its discretion to dismiss an application under this provision in situations which include the following:

Where an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend” 1

[13] On the application of Sonic and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application on the ground that Mr Bassari unreasonably failed to comply with a direction issued by the FWC to attend a conference conducted by the FWC.

[14] Consequently, the Application is dismissed pursuant to section 399A(1)(a) and (b) of the FW Act.

[15] An Order (PR705463) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705462>

 1   Fair Work Amendment Bill 2012 (Cth), Explanatory Memorandum, page 36.