Mr Sayed Hussaini v Sanikleen Group Australia Pty Limited
[2025] FWC 783
•20 MARCH 2025
| [2025] FWC 783 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Sayed Hussaini
v
Sanikleen Group Australia Pty Limited
(U2024/12460)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 20 MARCH 2025 |
Application for an unfair dismissal remedy – application dismissed pursuant to s 399A of Fair Work Act 2009 (Cth).
On 19 October 2024, Mr Sayed Hussaini (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts the termination of his employment with Sanikleen Group Australia Pty Limited (the Respondent) was unfair.
The matter was allocated to the Chambers of Commissioner Johns (Commissioner) on 27 November 2024 following unsuccessful conciliation before a staff member of the Commission on 26 November 2024. Directions were issued 28 November 2024 for a Mention/Programming hearing listed for 4 December 2024. That listing was vacated due to the unavailability of the Respondent as were the subsequently relisted and vacated dates for the Mention/Programming hearing of 20 December 2024 and 6 January 2025.
On 7 January 2025, directions for the filing of material and a notice of listing for hearing were issued to the parties from the Commissioner’s Chambers. The matter was initially listed to be heard on 31 January 2025. Following the failure of the parties to file material in accordance with the initial directions, revised directions were issued on 23 January 2025. The date for hearing of the matter by the Commissioner remained 31 January 2025. The Respondent filed its material on 31 January 2025 while the Applicant failed to attend the hearing listed for that day.
On 3 February 2025, further revised directions were sent to the parties. The revised directions provided in part for the hearing to be relisted for 27 March 2025 and required the Applicant to file his material by 4.00pm on 14 February 2025. The Applicant in the same correspondence was also directed to provide evidence in support of his non-attendance at the hearing on 31 January 2025. He was given until 28 February 2025 to comply with that requirement. The Applicant failed to file material in accordance with the revised directions or provide evidence supporting his non-attendance at the listed 31 January 2025 hearing.
On 3 March 2025, further correspondence was sent to the Applicant from the Commissioner’s Chambers noting that he had failed to file any material in accordance with the revised directions issued on 3 February 2025 or provide the required evidence in support of his non-attendance at the 31 January 2025 hearing. The correspondence relevantly stated as follows;
“…
I refer the Applicant to the attached email sent by Chambers on 3 February 2025.
The Applicant was directed to provide the Commission reasons for the Applicant’s non-attendance at the hearing on 31 January 2025, by 4:00 pm (Melbourne time) on 28 February 2025. Chambers is yet to receive any reasons.
The Applicant must provide reasons for their non-compliance with the Commissioner’s directions by 4:00 pm (Melbourne time) on 7 March 2025. Please note that a failure to not comply with the Commissioner’s directions may result in the matter being dismissed.
The Applicant was further directed to file in the Commission an outline of argument, statements of evidence, or other documents that the Applicant wants to rely upon in support of the merits of the application, by 4:00 pm (Melbourne time) on 14 February 2025. No such submissions have been received. Please note that the only submissions that the Commission has received so far from the Applicant is a single witness statement.
Noting that the Respondent has filed its submissions (also attached), the Applicant must file in the Commission, and serve on the Respondent, any submissions in reply to the Respondent’s submissions, by 4:00 pm (Melbourne time) on 14 March 2025.
…”
No response was received from the Applicant to the 3 March 2025 correspondence.
On 11 March 2025, the matter was reallocated to my Chambers following appointment of the Commissioner to the Federal Family and Circuit Court which prevented him from dealing with the matter to its conclusion. On allocation of the matter to my Chambers it became apparent on review of the file that there had been a pattern of non-compliance with directions on the part of the Applicant. Correspondence was sent from my Chambers to the parties on 13 March 2025 in which they were notified of a non-compliance hearing to be held on 17 March 2025.
While the Respondent attended the non-compliance hearing, the Applicant failed to do so or notify my Chambers of either his unavailability or reasons for not attending. During the course of the non-compliance hearing the Respondent’s representative made an oral application under s 399A of the Act for the application for an unfair dismissal remedy to be dismissed. Correspondence was then sent to the Applicant on 17 March 2025 which relevantly said as follows;
“…
As advised in correspondence sent to you on 13 March 2025, your matter has been allocated to Deputy President Masson following the appointment of Commissioner Johns to the Federal Court.
The Deputy President identified your failure to comply with directions of the Commission and a notice of listing for a non-compliance hearing was sent to you on 13 March 2025.
Your non-compliance hearing was held today at 4pm to deal with your;
· failure to attend the Conference/Hearing on 31 January 2025 to deal with and determine your application;
· failure to respond to correspondence dated 3 February 2025 in which you were directed to provide evidence by 28 February 2025 explaining your non-attendance to the above;
· failure to respond to correspondence dated 3 March 2025 in which you were again directed to provide information going to your non-attendance at the 31 January 2025 Conference/Hearing;
· failure to file witness statements, submissions, and other material on which you seek to rely by the revised filing date of 14 March 2025; and
· failure to attend today’s non-compliance hearing.
At this afternoon’s hearing, an application was made by the Respondent pursuant to s 399A(2) of the Fair Work Act 2009 (Cth) (the Act) that your application for an unfair dismissal remedy be dismissed due to your failure to attend hearings before the Commission and your failure to file material as directed by the Commission.
For your reference, 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.”
You may file submissions and any other material which you seek to rely on as to why your application for an unfair dismissal remedy should not be dismissed pursuant to s 399A of the Act by 5pm, Wednesday 19 March 2025.
Should either party seek to be heard in relation to the above, they should contact Chambers. Otherwise, the matter will be dealt with on the papers.
Please note that pending the outcome of the s 399A application made by the Respondent, the directions have been vacated.…”
The Applicant failed to respond or file any material in relation to the s 399A application.
Consideration
Turning now to whether the application should be dismissed, s 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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair dismissal remedy by 5.00pm on Wednesday 19 March 2025, I will determine the s 399A application on the papers.
The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by failing to attend the hearing listed for 31 January 2025, failed to file material in accordance with directions issued by the Commission, failed to provide evidence supporting his non-attendance at the 31 January 2025 hearing and failed to attend the non-compliance hearing listed for 17 March 2025. These failures have gone unexplained and are unreasonable in light of the substantial latitude afforded to the Applicant by the Commission in terms of the programming of the matter and the provision of revised filing dates.
In the above circumstances I have decided to grant the Respondent’s application under s 399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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