Nabih Merhi v Startrack Express Pty Ltd

[2023] FWC 2188

[2023] FWC 2188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nabih Merhi
v

Startrack Express Pty Ltd

(U2023/4240)

DEPUTY PRESIDENT EASTON SYDNEY, 31 AUGUST 2023

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

1. On 16 May 2023 Mr Merhi made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with Startrack Express Pty Ltd.

1. Ms Taylor Burt appeared on behalf of Startrack Express Pty Ltd (Startrack Express) at the telephone directions hearing on 27 July 2023. Mr Merhi did not appear and was unable to be contacted for the telephone directions hearing.

1. Directions were made that required Mr Merhi to file his evidence and an Outline of Submissions by 18 August 2023.

1. Mr Merhi has not responded to any of the attempts by the Commission to contact him and did not file any evidence or submissions as required by the Directions.

1. After Mr Merhi’s default a further Directions Hearing took place on 23 August 2023 and Mr Merhi did not attend.

1. On 25 August 2023 the Respondent applied for the matter to be dismissed under s.399A of the Fair Work Act 2009 (Cth) (FW Act) using the Form F1.

1. Directions were issued the same day requiring Mr Merhi to file and serve on Startrack Express any submissions he wished to make to address the s.399A application.

1. Mr Merhi did not file any material by 30 August 2023 or at all.

1. 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.

…

(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. The relevant principles to consider Startrack Express’ application under s.399A were helpfully summarised in Lockyear v Graeme Cox[2021] FWCFB 875 (Lockyear) at [57]:

“[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.”

1. In the s.399A application there are no facts in dispute that require the Commission to conduct a hearing to determine Startrack Express’ application (per s.397).

1. Section 399A(2) is obviously satisfied by Startrack Express’ application. Similarly, s.399A(1)(a) and (b) are satisfied by Mr Merhi’s failure to attend a conference conducted by the Commission and failure to comply with directions referred to above. The jurisdictional pre-requisites are met for Mr Merhi’s application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercises cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

1. Numerous attempts have been made to contact Mr Merhi. Mr Merhi has failed to engage with the application, has shown no willingness to prosecute his case and has taken no steps to do so.

1. In these circumstances, I see no utility in allowing Mr Merhi’s claim to continue and I therefore grant Startrack Express’ application under s.399A.

1. An order given effect to this decision will be issued separately (PR765713).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR765712>