Mr Marcel Grguric v Multicultural Aged Care Inc
[2025] FWC 5
•3 JANUARY 2025
| [2025] FWC 5 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Marcel Grguric
v
Multicultural Aged Care Inc.
(U2024/11153)
| COMMISSIONER THORNTON | ADELAIDE, 3 JANUARY 2025 |
Application for an unfair dismissal remedy – Application pursuant to s399A to dismiss application for unfair dismissal remedy – s399A application granted – matter dismissed.
Mr Marcel Grguric (the Applicant) lodged an application for a remedy for unfair dismissal on 18 September 2024, alleging he was unfairly dismissed from employment on 14 August 2024, with the dismissal taking effect on 28 August 2024.
Multicultural Aged Care Inc. (the Respondent) filed a Form F3 response on 27 October 2024. They did not raise any jurisdictional objections to Mr Grguric’s application.
On 30 October 2024, Mr Grguric sent an email to the Commission asking that the conciliation conference as listed before a staff conciliator be cancelled and the matter referred for arbitration. The matter was then allocated to me for determination.
The parties were notified on 11 November 2024 that the matter was listed for a directions hearing on 20 November 2024 and were sent a notice of listing.
On 17 November 2024, Mr Grguric sent an email to the Commission raising some concerns which included the statements: “There will be no conciliation meeting via Microsoft Teams on the 20th of November 2024, with parties that are at this stage not known to me. If correspondence from a Conciliation Commissioner arrives to inform me that General Manager of Multicultural Aged Care Inc. and any other person I may approve of will be part of the meeting, I will consider a form of meeting or correspondence that is suitable.”
The email also indicated that the Applicant expected “interpersonal email correspondence or phone contact” to be made with him by the Commission. Mr Grguric made clear in this correspondence that he required that a particular employee of the Respondent attend Commission proceedings as an “intermediary” and that other named employees of the Respondent were not to attend proceedings because the Applicant did not wish to have any further contact with those employees.
My chambers sent email correspondence to the parties on 19 November 2024, setting out that the directions hearing of 20 November 2024 was to make directions to prepare the matter for hearing and would be procedural in nature. My chambers advised that it was not for the Applicant to determine who from the Respondent was to participate in Commission proceedings and that the Respondent had complied with the request of chambers to advise who from the Respondent would be attending the directions hearing. Mr Grguric was asked to confirm by noon the same day whether he was attending the directions hearing the following day.
The Applicant promptly responded to the email from my chambers on the same day stating: “There will be no Conciliation meeting regarding this case on the 20th of November 2024, due to my directives not being acknowledged by Fairwork Australia (sic) in a way that I know to be right and proper. On the face of it, my requests have not been fairly considered or acted upon in any way.”
The Applicant did not attend the directions hearing on 20 November 2024.
On 21 November 2024, the Applicant sent an email to the Commission attaching what appeared to be an offer of settlement from the Respondent and attaching a reply that he asked the Commission to “view and relay the letter of reply” to the Respondent.
On the same day, my chambers responded to Mr Grguric’s email setting out the role of the Commission in the conciliation and arbitration of unfair dismissal claims and advising that “it is also not the role of the Commission to pass communications from one party to the other, in particular about settlement offers, outside of a conciliation conference. If you wish to respond to the correspondence sent directly to you by the Respondent it is necessary for you to respond to [the Respondent].”
My chambers also advised Mr Grguric in the above correspondence that it was necessary that he confirm his intention to either progress the matter to a hearing, including attending directions hearings and preparing evidence, or alternatively if he was now of a mind to attend conciliation we would see if a conciliation conference could be arranged. My chambers advised Mr Grguric that if we did not receive a response to the correspondence by 26 November 2024, then the matter would be listed for a further hearing to allow Mr Grguric to make submissions as to why his matter should not be dismissed because of his failure to progress the matter by engaging with the Commission’s process.
Mr Grguric responded to the Commission’s correspondence on 21 November 2024. In his email, Mr Grguric indicated that if the Commission failed to resolve his matter he would take his complaint to an alternative government agency to “gain proper redress”. He also said that he would escalate a complaint if the Commission “fast track[ed] expedient cancellation of my complaint case” and “I guarantee that if you deal unfairly and inequitable (sic) with my case, as an Australian citizen with human rights in a democratic nation, it will only signal a commencement of further redress strategy, with an aim to prevail and put to rights the injustice of this unfair workplace dismissal.”
Taking into account Mr Grguric’s concerns as set out in his email of 21 November 2024, I issued directions on 22 November 2024 for the filing of material in preparation for a hearing listed on 20 January 2025. Mr Grguric was directed to file his evidence on 6 December 2024.
On 25 November 2024, the Respondent filed a Form F1 containing an application for the Commission to dismiss Mr Grguric’s application for unfair dismissal under section 399A of the Fair Work Act 2009 (the Act) on the basis that “the Applicant, Mr Marcel Grguric, has unreasonably failed to attend a conference or hearing at the Commission.”[1]
The Applicant did not file his material as directed on Friday 6 December 2024.
On 9 December 2024, my chambers sent an email to Mr Grguric containing the following information:
“As per the directions issued by Commissioner Thornton on 22 November 2024, material for the Applicant was due to be filed with the Commission, and served on the Respondent, by 4:00pm (ACDT) on Friday, 6 December 2024.
The Commission has not received any material from the Applicant, nor has it received a request for an extension.
To proceed with his application it is necessary that Mr Grguric engage with the Commission. If you do not engage with the process and file your material then your matter may be dismissed.
The Commission can dismiss your application on its own motion for what is referred to as ‘want of prosecution’ or a failure to progress your matter by attending hearings and filing evidence under section 587 of the Fair Work Act 2009 (the Act). Alternatively, the Commission can dismiss your matter if the Respondent employer party makes an application for the dismissal of the matter under section 399A of the Act. The Respondent in this matter has filed a Form F1 (please see attached email) seeking to have the Commission dismiss this matter under section 399A.
The matter is now listed for non-compliance hearing at 2:00pm (SA Time) on Monday, 16 December 2024. The Respondent’s application under section 399A will also be heard at this time. Please see the attached Notice of Listing.
Prior to the directions hearing, the Commission seeks a written response from the Applicant setting out why submissions were not provided in compliance with the directions and any submissions the Applicant wishes to make about the Respondent’s application to have his claim dismissed. This response is due by close of business on Friday, 13 December 2024.
It is important to note that if the above requested response is not received, the non-compliance hearing will still proceed to address both the Applicant’s non-compliance and the Respondent’s application under section 399A.” (emphasis removed).
On the same day Mr Grguric responded to the Commission’s correspondence by email as follows:
“With respect
You have not followed detailed, yet simple, requests and directives from complainant, which could've efficiently concluded this matter (see last Sent emails).
An independent entity will assess this matter and decide justly.
This matter will not be dealt with any further prior to Christmas 2024.”
Mr Grguric did not file any material with respect to his non-compliance with the directions by 13 December 2024. Mr Grguric did not attend the hearing listed on 16 December 2024 and therefore, did not make any submissions in response to the Respondent’s application to have his matter dismissed pursuant to section 399A of the Act.
At the hearing listed on 16 December 2024, I granted the Respondent’s application to dismiss the Applicant’s application. Below are the reasons for the decision now provided in writing.
Consideration
Section 399A of the 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.
A Full Bench of the Commission set out the process that should be followed before the Commission dismisses an application under section 399A of the Act in Lockyear v Cox[2]:
“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1.An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2.The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3.The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4.In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5.A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.” (footnote omitted)
The application was made by the Respondent employer in accordance with section 399A(2) by way of filing a Form F1 on 25 November 2024.
The Applicant was served with the section 399A application on 9 December 2024. He was asked to make a response to the application in writing by 13 December 2024. Mr Grguric failed to provide any response by 13 December 2024. The application was listed for a hearing on 16 December 2024 during which time Mr Grguric could have made oral submissions about why his claim should not be dismissed. He did not attend the hearing.
Mr Grguric was advised by email on 9 December 2024 that even if he did not engage with the process and file a written response by 13 December 2024, the hearing would proceed and address his non-compliance with the Commission’s directions and the Respondent’s application to dismiss the application. The only response made by Mr Grguric, after being served with the section 399A application was to indicate that he would take the matter to an “independent entity” and to say “this matter will not be dealt with any further prior to Christmas 2024.” My chambers have not received any further contact from the Applicant since the email of 9 December 2024.
With respect to the substantive elements of the Respondent’s application to dismiss the application, I am firstly satisfied that Mr Grguric has unreasonably failed to attend two directions hearings held by the Commission in relation to the application on 20 November and 16 December 2024. Secondly, I am satisfied that Mr Grguric has unreasonably failed to comply with directions issued by the Commission, the first to file evidence and submissions in support of his claim for a remedy arising from what he asserts was his unfair dismissal and the second to provide reasons for his non-compliance with those directions.
I considered the Respondent’s application cautiously as granting the application will result in Mr Grguric no longer being able to pursue his unfair dismissal claim in the Commission. Mr Grguric’s failures to attend directions hearings and comply with directions have been unreasonable because they:
(a) have been repeated;
(b) appear from the Applicant’s written correspondence to be based upon criticisms of the Commission’s usual processes in communicating with parties in the course of this and similar matters;
(c) concern objections taken to the impartial role played by the Commission in exercising its powers to deal with the application by conciliation and arbitration; and
(d) have relied on the Applicant’s apparent belief that he can determine who from the Respondent will attend proceedings, that the Commission is obliged to follow the Applicant’s direction in that regard and that the Applicant can elect not to follow directions or attend hearings if the Commission does not uphold the Applicant’s requirements.
The Respondent’s application pursuant to section 399A of the Act to have Mr Grguric’s claim for an unfair dismissal remedy dismissed was granted on 16 December 2024. An order confirming the dismissal of Mr Grguric’s claim will be published concurrently with this decision.[3]
COMMISSIONER
[1] Form F1 filed by the Respondent on 25 November 2024, paragraph 2.1.
[2] [2021] FWCFB 875.
[3] PR782930.
Printed by authority of the Commonwealth Government Printer
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