Mr Milos Krivokuca v McCormack Hardwood Sales Pty Ltd

[2022] FWC 110

[2022] FWC 110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Milos Krivokuca
v

McCormack Hardwood Sales Pty Ltd

(U2021/10493)

COMMISSIONER JOHNS MELBOURNE, 24 JANUARY 2022

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.

1. On 18 November 2021, Mr Milos Krivokuca (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 McCormack Hardwood Sales Pty Ltd (the Respondent).

1. The Applicant commenced working for the Respondent in February 2017. On 5 November 2021, the Respondent notified the Applicant of their intention to dismiss the Applicant. The dismissal took effect on that same day.

1. On 29 November 2021, the Respondent lodged a Form F3 response to the Applicant’s application.

1. On 7 January 2022, a conciliation before a conciliator of the Fair Work Commission (Commission) was attempted, however, the dispute remained unresolved.

1. On 7 January 2022, the matter was allocated to me by Commissioner Bissett. On 10 January 2022, I sent the parties a notice of listing, listing the matter for a mention/directions hearing at 11:00am (AEDT) on Friday, 14 January 2022.

1. At the scheduled mention/directions hearing on 14 January 2022, the Applicant failed to attend. At the commencement of the hearing, my Associate called the Applicant six times. However, his calls were left unanswered. A voice message directing the Applicant to return the Commission’s calls was left. No response was received.

1. The Respondent was represented by Ms Julia Hall, Chief Executive Officer of the Respondent. Despite the Applicant’s absence, the mention/directions hearing proceeded. The Respondent made an oral s.399A application on transcript to have the Applicant’s s.394 application for an unfair dismissal remedy dismissed.

2. 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.”

1. 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 14 January 2022. The letter directed the Applicant to explain his failure to attend the 14 January 2022 hearing by no later than 5:00pm on Friday, 21 January 2022.

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

1. 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.

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

COMMISSIONER

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