Mr Muhammet Topdas v BTM Investments T/A Pablo's Vice

[2018] FWC 6998

[2018] FWC 6998

FAIR WORK COMMISSION

DECISION

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

Mr Muhammet Topdas
v
BTM Investments T/A Pablo’s Vice
(U2018/5574)

COMMISSIONER JOHNS MELBOURNE, 16 NOVEMBER 2018

Application for an unfair dismissal remedy – s.399 application to dismiss unfair dismissal application.

[1] On 29 May 2018, Muhammet Safa Topdas (Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). The Applicant alleged his employment had been terminated unfairly by BTM Investments T/A Pablo’s Vice (Respondent) on 26 May 2018.

[2] On 6 June the Respondent raised a jurisdictional objection to the application on the grounds that the Applicant had not met the minimum employment period under s.383 of the Act.

[3] On 20 September Deputy President Dean determined in transcript (with reasons published on 26 September 2018) that the Respondent’s jurisdictional objection was dismissed. 1

[4] The matter was allocated to me on 27 September 2018 for arbitration. I listed the matter for a Mentions/Directions Hearing on 4 October 2018. The notice of listing issued included detailed instructions about how to request an adjournment.

[5] No adjournment requests were received.

[6] On 4 October 2018 the matter was listed for Determinative Conference on Friday 16 November 2018. The notice of listing also included instructions about how to request an extension of time to file materials and how to request an adjournment.

[7] Also on 4 October I issued directions (later amended on 29 October 2018) that,

a) by no later than 4:00pm on 18 October 2018 the Applicant must file in the Commission and serve on the Respondent an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of the application.

b) by no later than 4:00pm on 1 November 2018 the Respondent must file in the Commission and serve on the Applicant an outline of argument, statements of evidence or other documents the Respondent intends to rely on in opposition to the application.

c) by no later than 4:00pm on 8 November 2018 the Applicant must file in the Commission and serve on the respondent any materials in reply.

[8] No requests for an extension of time or to adjourn the matter were received.

[9] The Applicant did not file any materials as directed by 4:00pm Thursday, 18 October 2018.

[10] On 7 November 2018 the Respondent made an application under Section 399A of the FW Act to dismiss the Applicant’s application for remedy from unfair dismissal.

[11] On the same day the Applicant was directed to file a response explaining why the matter should not be dismissed. He was directed to do so before 4:00 pm on 14 November 2018.

[12] At 5.14pm on 14 November 2018, the Applicant filed the following response:

“I am aware that I have failed to submit my files to the FWC as well as to the respondent within the given the given time frame. Thus, I have failed to comply with the FWC’s directions. The reason as to why I have failed to comply with the directions are two-fold.

Firstly, I am proud to say that I am nearly graduated from my degree and currently undertaking my final exams. However, this kind of success comes with a lot of compromises. Such as the main reason of this case. I have been under a lot of pressure recently both due to my final studies and also trying to find an internship/graduate position related to my degree.

The second reason is that due to this pressure on me as well as other personal reasons, I have been prescribed anti-depressants by my doctor. I was also warned about the risks of taking such medication, such as extreme low moods and lack of energy for the first 4-6 weeks of the medication. Unfortunately, despite the fact that I am fighting through this with my 100%, there have been times in which this medication has had a negative impact on my daily routine.

I am aware that the President Dean has the right to dismiss this matter, however, I would appreciate that the case proceeds.”

[13] As a consequence of no materials having been filed and the late response from the Applicant, the Determinative Conference listed for 16 November 2018 was vacated.

[14] On 15 November 2018 the Respondent filed some of its substantive materials. However, it is not necessary to have regard to them in this decision.

Determination

[15] Section 399A of the 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.

....

(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.

[16] On two occasions the Applicant was provided with explicit instructions about how to request an adjournment and/or an extension of time. This includes on 27 September 2018 with the notice of listing for the Mentions/Directions Hearing and 4 October 2018 with the notice of listing for the Determinative Conference. At no point did the Applicant apply for either an adjournment or an extension of time to file materials. While I am sympathetic to the mental health issues and stress of the Applicant, his lack of action represents an unreasonable failure to comply with my directions for him to file his materials by 18 October 2018.

[17] I am satisfied that the Applicant unreasonably failed to comply with a direction or order of the FWC relating to the application.

[18]Consequently, after considering all the material, the Applicant’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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 1   Muhammet Topdas v BTM Investments T/A Pablo’s Vice [2018] FWC 5818, PR700436.