Mr Yasteel Gokal v Pizza Capers Brinsmead T/A Pizza Capers

[2018] FWC 2429

[2018] FWC 2429

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Yasteel Gokal
v
Pizza Capers Brinsmead T/A Pizza Capers
(U2018/1684)

DEPUTY PRESIDENT ASBURY BRISBANE, 1 MAY 2018

Application for an unfair dismissal remedy – Application under s.399A for the Commission to dismiss application for failure by Applicant to comply with a direction of the FWC relating to the application – Application granted – Unfair dismissal application dismissed.

[1] In a decision issued on transcript on 24 April 2018, I dismissed an application by Mr Yasteel Gokal (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Pizza Capers Brinsmead T/A Pizza Capers (the Respondent). The application was filed in the Commission on 21 February 2018.

[2] On 21 February 2018, the Commission sent a letter to the Applicant advising that the application appeared to have had been lodged outside the required time and containing information about the extension of time process. The following day, a notice of listing for a conciliation conference on 15 March 2018 was issued.

[3] In its Employer Response filed on 27 February 2018, the Respondent raised a jurisdictional objection to the application on the basis that it had been made out of time. This objection was disputed by the Applicant.

[4] On 5 March 2018, the Respondent informed the Commission that the Applicant had been formally charged by Police in a matter related to his employment. On 13 March 2018 the Applicant requested an extension for the conciliation to deal with those matters. The conciliation was cancelled and the matter was then referred to me.

[5] On 4 April 2018, Directions were issued to the parties for the provision of material relating to the extension of time issue. The Applicant was directed to file his material in relation to an extension of time. The Directions stated that the matter was also listed for Hearing by telephone on 24 April 2018.

[6] The Applicant did not file his material by 4.00pm on 11 April 2018 as required. On 12 April 2018 I instructed my Associate to write to the Applicant and his representative requesting his response as to his reasons for failing to comply with the directions by close of business on that day. No response was received to that correspondence from the Applicant or his representative.

[7] On 17 April 2018, I instructed my Associate to write to the Applicant and his representative further advising that no material had been filed by the Applicant as per the Directions issued on 4 April 2018, and that no response was received from the Applicant or his representative to the correspondence sent on 12 April 2018. The correspondence noted that if an application was made by the Respondent under s.399A of the Act for the matter to be dismissed for non-compliance, the matter would be listed for Hearing on that issue, subject to any correspondence from the Applicant.

[8] On 23 April 2018 the Respondent made an application under s.399A of the Act for the unfair dismissal application to be dismissed. I instructed my Associate to send correspondence to the Applicant and his representative to provide a response to the s.399A application by close of business that day, and the Applicant was advised that the objections hearing listed for 24 April 2018 was amended to be listed as a hearing to determine the s.399A application to have the substantive application dismissed. The Applicant was advised that if no response was received to the s.399A application or if he failed to attend the telephone hearing his application may be dismissed without further notice.

[9] No response or any communication from the Applicant was received by the Commission. At the commencement of the telephone hearing on 24 April 2018, my Associate twice attempted to contact the Applicant and his representative on the mobile telephone contact numbers provided on the application. The Applicant and his representative were unable to be contacted and did not attend the hearing. Ms Andrea Tunjic, of People Strong, represented the Respondent. Mr Paul Stafford, owner/manager of the Respondent was also in attendance. The Hearing proceeded in the absence of the Applicant.

Legislation

[10] 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.

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.”

Conclusions

[11] I am satisfied that the Applicant has failed to comply with directions of the Commission relating to his application and failed to attend a hearing conducted by the Commission. The Applicant has provided no reasonable explanation for his failure to comply with directions of the Commission, or his failure to attend the hearing of 24 April 2018.

[12] The Applicant has also failed to respond to correspondence of the Commission regarding his failure to comply with the directions, or to seek an extension in which to file his material.

[13] I am satisfied that the conduct of the Applicant in this matter triggers the discretion in s.399A of the Act to dismiss his application and that the discretion to dismiss the application should be exercised.

[14] The Respondent’s application under s.399A(1)(b) is granted. The application in U2018/1684 is dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

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