Mr Matthew Rowan Mlinaric v ACFS Port Logistics Pty Ltd T/A ACFS Port Logistics
[2022] FWC 242
•7 FEBRUARY 2022
| [2022] FWC 242 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Rowan Mlinaric
v
ACFS Port Logistics Pty Ltd T/A ACFS Port Logistics
(U2021/11867)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 7 FEBRUARY 2022 |
Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the
Act.
On 20 December 2021 Mr Matthew Rowan Mlinaric made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Mlinaric said that his employment had been terminated by ACFS Port Logistics Pty Ltd T/A ACFS Port Logistics (Respondent) on 4 October 2021.
The matter was listed for a mention/directions hearing on 14 January 2022. At the conclusion of the hearing, directions and an electronic link to the Commission’s Unfair dismissals benchbook were sent to the parties. Mr Mlinaric was required to file his submissions, witness statements and any other evidence he sought to rely on in support of his application by 21 January 2022. The matter was listed for hearing on 1 February 2022.
The Commission received emails sent by persons on behalf of Mr Mlinaric, all from persons who were not attending the hearing as witnesses. Mr Mlinaric did not file a witness statement or submissions on his own behalf as directed.
On 20 January 2022, the Commission sent correspondence to Mr Mlinaric providing details on how to prepare for a hearing and the requirement to comply with the directions issued on 14 January 2022.
On 21 January 2022, Mr Mlinaric contacted the Commission and expressed concerns about appearing before the Commission via Microsoft Teams. Mr Mlinaric stated that he did not trust Microsoft, Google, or other various technology companies with his data. Mr Mlinaric also submitted that he had been mistreated at his workplace, discriminated against and underpaid. Mr Mlinaric was provided additional information on how he could attend proceedings and was again referred to the Unfair dismissals benchbook and the Commission’s website for further information. Mr Mlinaric was also informed that should he wish to seek an adjournment to the hearing, he could do so by submitting a request in writing to my Chambers.
On 27 January 2022, correspondence was sent to Mr Mlinaric informing him that the Commission had not received his submissions or witness statement and he was to file those materials by 4:00pm that same day.
On 27 January 2022 at 3:55pm, in accordance with the directions issued, ACFS Port Logistics filed its’ materials objecting to the application with the Commission and provided a copy of this to Mr Mlinaric. Mr Mlinaric subsequently sent an email to Ms Lisa Rebeiro, however I do not consider the content of the correspondence to be relevant to the matters I am required to determine.
On 28 January 2022, the parties were requested to confirm attendance at the test dial scheduled to commence at 9:00am on 31 January 2022. Mr Mlinaric did not provide a response. Mr Mlinaric failed to attend the test dial as scheduled. A second test dial was scheduled at a time agreed to by Mr Mlinaric. Mr Mlinaric also failed to attend the second test dial.
On 1 February 2022, at the commencement of the hearing, several attempts were made to contact Mr Mlinaric. Mr Mlinaric did not answer or respond to the Commission’s calls. Sometime after the commencement of proceedings, the Commission was able to establish contact with Mr Mlinaric who informed the Commission that he was driving a heavy vehicle and could not pull over to take the call. Mr Mlinaric stated that if the matter was to proceed, then he would need to participate by phone. Mr Mlinaric was advised it was neither appropriate nor safe for him to participate in proceedings of this Commission whilst driving a heavy vehicle on a freeway. Mr Mlinaric was requested to find a safe place to park his vehicle if he wished to proceed with his matter. Mr Mlinaric was informed that if he did not find a safe place to participate in the hearing and because he had not sought an adjournment, the matter may proceed in his absence. Mr Mlinaric stated it was not possible for him to pull over so that he could participate in the proceedings. Consequently, I instructed my Associate to terminate the call.
The hearing commenced in Mr Mlinaric’s absence. ACFS Port Logistics made an application pursuant to s.399A seeking to have the matter dismissed.
Section 399A of the FW 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.”
ACFS Port Logistics submitted that Mr Mlinaric had failed to file submissions and a witness statement in accordance with the directions of the Commission, and had failed to attend proceedings before this Commission on time and in accordance with the directions of the Commission.
Correspondence was sent from my Chambers informing Mr Mlinaric that a s.399A application had been made by ACFS Port Logistics. Mr Mlinaric provided the following response:
“Yeah I apologize for not being able to make the hearing. I was not in a position to safely pull over, as there was not enough room to safely do so in a truck on the Princes hwy.
Furthermore It was only my 2nd day on a new job and I did not want to present poorly because 2 other drivers were ahead of me waiting on site that work for the same company. These guys were training me and I did not want to disappoint them, my truck did not have a Moffit forklift to unload pipe so I had to also keep up with them.
This is an extremely fast paced job and a good one at that and I do not want to risk losing a good job especially one that is in the same town and pays well!
Furthermore I was not in a good predicament to pull over on the Princes Hwy as it was too dangerous. I had an oversize load on and their was not sufficient space in order to do so safely.
In addition my new job has monthly RDO's where we are required not to save them up. This may well be a good opportunity to finalize things hopefully!”(sic)
Further correspondence was sent from my Chambers seeking clarification as to whether Mr Mlinaric wished to continue with his application. Mr Mlinaric did not provide a response and to date there has been no further correspondence received from Mr Mlinaric.
Conclusion
It is fortunate that Mr Mlinaric has obtained further employment, however Mr Mlinaric has not complied with the directions issued on 14 January 2022. Mr Mlinaric did not file any submissions or his witness statement by the required dates and has not provided an explanation as to why he failed to comply with the directions of this Commission.
Further, Mr Mlinaric failed to attend two scheduled test dials which were arranged to assist him in pursuing his application. Mr Mlinaric also failed to attend the hearing in accordance with the directions of this Commission and failed to seek an adjournment so that his matter could be heard at a time where he was able to participate without placing himself and other members of the public in danger.
On the basis of the information before me, and in these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Mlinaric’s application.
An order giving effect to this will be issued with this decision.
COMMISSIONER
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