Mr Maciej Karolczak v JaJa Pty Ltd T/A MaQuay International Restaurant

[2016] FWC 659

[2016] FWC 659

FAIR WORK COMMISSION

DECISION

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

Mr Maciej Karolczak
v
JaJa Pty Ltd T/A MaQuay International Restaurant
(U2015/11229)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 21 August 2015, Mr Maciej Karolczak made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Karolczak’s employment had been terminated by JaJa Pty Ltd T/A MaQuay International Restaurant on 31 July 2015.

[2] The matter was listed for conciliation on 25 September 2015 however it could not take place.

[3] On 6 October 2015, JaJa filed a Form F3 – Employer Response to application for an Unfair Dismissal Remedy with the Commission which objected to the application on grounds that there was no dismissal and that it was a small business.

[4] On 14 October 2015, Commission staff contacted JaJa who confirmed that they were a small business employer. Consequently, the matter was listed for a jurisdictional conference/hearing and directions were issued.

[5] JaJa was directed to file an outline of argument, outline of argument: objections, statement of evidence and a document list by noon, on 2 November 2015.

[6] On 11 November 2015, Commission staff contacted JaJa regarding the filing of their materials and were advised that the respondent company no longer exists. Commission staff conducted a search of the respondent on the Australian Securities and Investments Commission database which indicated that an application for winding up was in progress.

[7] On 11 November 2015, Commission staff contacted a representative of Gadens, who were listed on ASIC as the contact for the winding up application, who advised that JaJa had been wound up that day and that PPB Advisory had been appointed as the liquidators.

[8] On 12 November 2015, Commission staff contacted PPB Advisory who advised that JaJa was in court ordered liquidation. Commission staff advised PPB that the application was listed for a jurisdictional hearing on 20 November 2015. PPB requested that the proceeding be stayed which was confirmed in an email that attached a copy of the winding up order made by The Honourable Associate Justice Gardiner on 11 November 2015.

[9] On 12 November 2015, the Commission notified the parties that the hearing listed for 20 November 2015 would proceed.

[10] On 13 November 2015, the Commission received correspondence from PPB advising that they would not be attending the hearing as the liquidation is without funds/books and records.

[11] Consequently, on 17 November 2015 Commission staff attempted to contact Mr Karolczak to determine whether he wished to continue with his application given that JaJa was in court ordered liquidation, including leaving a voice message to contact the Commission and sending an email.

[12] On 23 November 2015, an Order was issued by Vice President Watson dismissing the jurisdictional objection.

[13] The matter was listed for arbitration and directions were issued providing for Mr Karolczak to file an outline of submissions, witness statements and other documentary evidence in support of his application by noon on 21 December 2015.

[14] Commission staff made several attempts to contact Mr Karolczak on 5 and 6 January 2016 regarding the filing of his materials including sending text messages and an email.

[15] On 13 January 2016, Commission staff forwarded an email to Mr Karolczak advising that as he had not complied with the Commission’s direction, the matter would be listed for a non compliance hearing.

[16] The matter was listed for non compliance hearing before me at 9.00am on 15 January 2016.

[17] On 13 January 2016, the Commission received an email from PPB advising that they would not be attending the non compliance hearing.

[18] Mr Karolczak did not attend the non compliance hearing before me on 15 January 2016 and I determined that a letter would be forwarded to Mr Karolczak informing him that I was considering dismissing his application on my own motion under section 587 of the Act on the basis that the application has no reasonable prospects of success.

[19] On 19 January 2016, the Commission sent a letter to Mr Karolczak confirming that there was no attendance at the non compliance hearing on 15 January 2016 and my determination that I was considering dismissing the application on my own motion. Mr Karolczak was directed to file by close of business on 27 January 2016, any submissions, evidence or documentary material that he relies on outlining why his application should not be dismissed. Mr Karolczak was advised that if he failed to comply with this direction, his application would be dismissed.

[20] Mr Karolczak did not file any material with the Commission.

[21] Section 587 of the Act provides as follows:

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.

…
(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.

[22] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[23] As Mr Karolczak did not file any material as to why his application should not be dismissed, I will determine the application on the papers.

[24] Mr Karolczak has not filed any witness statements or submissions. In the absence of any evidence, the Commission has no basis to conclude that the dismissal was unfair.

[25] Mr Karolczak has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Karolczak’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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