Mr Wei Cheng Wang v Thomas Foods International
[2024] FWC 3162
•15 NOVEMBER 2024
| [2024] FWC 3162 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Wei Cheng Wang
v
Thomas Foods International
(U2024/9374)
| COMMISSIONER THORNTON | ADELAIDE, 15 NOVEMBER 2024 |
Application for an unfair dismissal remedy - Application dismissed pursuant to s.399A of the Fair Work Act 2009
This decision concerns the dismissal of the unfair dismissal application of Mr Wei Cheng Wang (the Applicant) as sought by Thomas Foods International (the Respondent) on account of the Applicant’s failure to participate in the proceedings.
Background
On 13 August 2024, the Applicant made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging he had been unfairly dismissed by the Respondent.
The Applicant made some initial contact with the Commission about the conciliation listed before a staff conciliator, but did not attend the conciliation conference. The matter was then referred to my chambers.
On 17 October 2024, the matter was listed for directions hearing. The Applicant responded to the email from my chambers on the same day, saying only “I am working now”.[1]
Chambers responded to the Applicant’s email of 17 October 2024, with the following email:
“Good Afternoon Mr Wang,
RE: U2024/9374 - Mr Wei Cheng Wang v Thomas Foods International
I refer to the above matter and the below email.
Chambers is unsure what you mean by your email.
If you no longer wish to proceed with your application, you will need to discontinue the matter in the Commission by filing a Form F50 – Notice of Discontinuance. A copy of this form has been attached to this email.
If you are unable to attend the directions hearing at the listed time, you will need to request the directions hearing be rescheduled.
You will need to engage with the Commission in this matter, otherwise the matter may be dismissed.
Further, parties are required to copy the other party into all correspondence with the Commission to ensure procedural fairness.
Thank you.”[2]
The directions hearing was held on 24 October 2024. The Applicant did not attend. Directions were issued and the matter was listed for hearing. The email covering the Directions stated:
“Good Afternoon Parties,
RE: U2024/9374 - Mr Wei Cheng Wang v Thomas Foods International
I refer to the above matter.
Mr Wang, this morning the Commission held a directions hearing in your matter and you were not in attendance. The Commission made attempts to contact you and a voicemail was left with the assistance of an interpreter.
Please see the attached Directions and Notice of Listing.
Parties must comply with their filing dates or contact Chambers if a short extension is needed. If parties fail to file their materials as per the directions and no extension has been sought in advance, the matter will be listed for non-compliance hearing.
Thank you.”[3]
On 4 November 2024, the Respondent filed a Form F48 – An application for directions on procedure with Chambers.[4] The form set out that the Respondent was seeking that the Applicant’s unfair dismissal application be dismissed pursuant to section 399A of the Act because the Applicant had failed to prosecute their claim, and failed to attend the conciliation conference and the directions hearing.[5]
The application was served on the Applicant when the Respondent copied them into their email of 4 November 2024.
The matter was listed for a directions hearing on 12 November 2024 to address the Respondent’s Form F48.
The Applicant was due to file their materials in accordance with the directions at 4:00pm (ACDT) on 7 November 2024. The Applicant did not file by this deadline and has not attempted to file their materials in the days following. On 8 November 2024, the Respondent amended their Form F48 to include the Applicant’s failure to comply the with the directions.[6]
The following email was sent to the Applicant by Chambers on 8 November 2024:
“Good Afternoon Mr Wang,
RE: U2024/9374 - Mr Wei Cheng Wang v Thomas Foods International
I refer to the above matter.
As per the directions issued by Commissioner Thornton on 24 October 2024, you were to file your materials in support of your unfair dismissal application by no later than 4:00pm (ACDT) Thursday, 7 November 2024.
The Commission has not received any material from you, nor has it received a request for an extension.
The matter is already listed in for a directions hearing on Tuesday, 12 November 2024 to address the application filed by the Respondent, in which it is seeking for the Commission to dismiss your application under section 399A of the Fair Work Act. This directions hearing will now also address your non-compliance with the directions.
You are required to engage with the Commission and comply with the directions, otherwise your application may be dismissed.
We confirm that an interpreter will be in attendance at the directions hearing to facilitate your participation.
Thank you.”[7]
The Applicant did not attend the directions hearing on 12 November 2024. At the directions hearing I confirmed that I would grant the application made by the Respondent pursuant to section 399A of the Act and would publish my reasons.
Consideration
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.”
In Lockyear v Graeme Cox,[8] the Full Bench found:
“[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.”
The Respondent’s grounds for the s.399A application are that the Applicant failed to attend the directions hearing and failed to comply with the directions requiring him to file materials in support of his application.
The Respondent did not file a Form F1 but rather a Form F48 being an application for directions on procedure. However, the application made clear that the Respondent was seeking dismissal of the claim pursuant to section 399A(1)(a) and the basis for that application. I waive compliance with the Fair Work Commission Rules 2024 regarding the filing of a Form 1 pursuant to s.586 of the Act and accept the Respondent’s application.
The Applicant was served with the Respondent’s application when it was filed in the Commission. My chambers then sent correspondence to the Applicant confirming the application to dismiss had already been listed for a directions hearing and further, the directions hearing would address his non-compliance with the directions for filing of material. In that correspondence my chambers advised the Applicant: “You are required to engage with the Commission and comply with the directions, otherwise your application may be dismissed.”
The Applicant was served with the application to dismiss and had an opportunity to respond, at the very least by attending the directions hearing, which he did not. The Applicant was on notice that should he fail to engage with the process, the Commission may dismiss his application. The Commission also notified the Applicant that we had arranged an interpreter to assist him.
For the above reasons I order that the application of the Respondent to dismiss the Applicant’s unfair dismissal application is granted and the unfair dismissal application be dismissed.
COMMISSIONER
[1] Email sent by the Applicant to Chambers on 17 October 2024 at 9:45am (South Australian Time).
[2] Email from Chambers to the Applicant on 17 October 2024 at 3:04pm (Australian Central Daylight Savings Time).
[3] Email from Chambers to Applicant on 24 October 2024 at 12:19pm (South Australian Time).
[4] Email from the Respondent to Chambers on 4 November 2024 at 11:56am (South Australian Time).
[5] Form F48 – Application for directions on procedure filed by the Respondent dated 4 November 2024 at section 1.3.
[6] Amended Form F48 – Application for directions on procedure filed by the Respondent dated 8 November 2024 at section 1.3.
[7] Email from Chambers to the Applicant on 8 November 2024 at 4:57pm (South Australian Time).
[8] [2021] FWCFB 875 at [57].
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