Nazim Akdemir v Mega Homes Pty Ltd T/A Mega Residential

[2019] FWC 4784

[2019] FWC 4784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nazim Akdemir
v
Mega Homes Pty Ltd T/A Mega Residential
(U2019/3270)

COMMISSIONER BISSETT MELBOURNE, 11 JULY 2019

Application for an unfair dismissal remedy.

[1] On 22 March 2019, Mr Nazim Akdemir made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act (the Act).

[2] In his Form F2 – Unfair Dismissal Application, Mr Akdemir said he was notified his employment had been terminated by Mega Homes Pty Ltd T/A Mega Residential (Mega Residential) on 14 March 2019.

[3] On 1 April 2019, a Notice of Listing was sent to the parties scheduling the matter for conciliation on 2 May 2019.

[4] The Commission attempted to telephone Mega Residential on 29 April 2019 and was greeted with a voicemail message advising that Mega Residential had been placed in liquidation and providing a contact number for the liquidator.

[5] A review of the ASIC insolvency notices database shows that on 17 April 2019, the Supreme Court of Victoria ordered Mega Residential to be wound up and appointed Hamilton Murphy as the liquidator.

[6] Also on 29 April 2019, Commission telephoned Hamilton Murphy and advised that the Commission was awaiting to receive a Form F3 – Employer response to unfair dismissal application from Mega Residential. The Commission’s records indicate that during this telephone conversation, an email address for Hamilton Murphy was provided and the contact person confirmed their willingness to receive materials in relation to Mr Akdemir’s application.

[7] The conciliation on 2 May 2019 could not proceed due to the unavailability of a contact person from Hamilton Murphy. Following this, correspondence was sent to both Mr Akdemir and Hamilton Murphy advising them to inform the Commission within two working days whether or not they wished for the matter to proceed to a further conciliation, otherwise the matter would be referred for arbitration.

[8] On 13 May 2019, the Commission sent correspondence to Mr Akdemir, which stated:

“You filed an application for an unfair dismissal remedy on 22 March 2019 with respect to your employment with Mega Homes Pty Ltd T/A Mega Residential.

The Fair Work Commission (the Commission) was advised by Hamilton Murphy (Liquidators) that the Court ordered to wind up the company and appointed a liquidator on 17 April 2019.

If a company is in liquidation as a consequence of a court order, s.471B of the Corporations Act 2001 applies.

Section 471B provides:

Stay of proceedings and suspension of enforcement process

While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a) a proceeding in a court against the company or in relation to property of the company; or

(b) enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

In Smith & ors v Trollope Siverwood & Beck Pty Ltd (in liquidation) (Smith) the Full Bench of the Australian Industrial Relations Commission concluded that the Commission is not a court. A proceeding in the Commission is therefore not a “proceeding in a court” and s.471B of the Corporations Act 2001 does not apply to an unfair dismissal application.

For this reason where a company is in liquidation as a consequence of a court order s.471B of the Corporations Act does not preclude an application for unfair dismissal being commenced or proceeded with. However, the Commission retains discretion as to whether the matter should proceed for determination or be adjourned.

Deputy President Clancy, Termination of Employment Practice Leader at the Fair Work Commission, has formed the preliminary view that there is little utility in continuing with your application given that the company against which you have made the application is insolvent.

Prior to making a decision as to whether your matter should proceed or not the Deputy President seeks any submissions you may wish to make on the matter. Such submissions should be made by reply email by noon on Monday, 20 May 2019” (references omitted)

[9] No submissions were filed by Mr Akdemir by 20 May 2019. On 23 May 2019, the Commission emailed correspondence to Mr Akdemir providing him with a further opportunity to make submissions by no later than 4:00PM on 31 May 2019.

[10] On 27 May 2019, the Commission received a reply email from Mr Akdemir stating:

“Thank you for your email.

I have been advised by your assessor that the matter is with the liquidator and there is nothing Fairwork could do.

I’m not sure of my rights. I don’t understand how now [sic] one is held accountable and employer gets away with it.”

[11] On 30 May 2019 and 4 June 2019, the Commission attempted to telephone Mr Akdemir. Voicemail messages were left on each occasion advising Mr Akdemir that his matter would be listed for arbitration and providing information as to whom he could seek independent advice from including JobWatch, the General Employee Entitlements and Redundancy Scheme (GEERS) and the Fair Entitlements Guarantee (FEG). A SMS message was also sent to Mr Akdemir on 4 June 2019, requesting that he return the Commission’s call.

[12] Later on 4 June 2019, Mr Akdemir returned the Commission’s call and confirmed his preference for the matter to go to arbitration. Following the telephone call, the Commission emailed Mr Akdemir and provided the contact details for JobWatch.

[13] On 5 June 2019, a Notice of Listing was sent to the parties scheduling the matter for Arbitration Conference/Hearing on 12 August 2019. Directions were also issued for the filing of material. Mr Akdemir was directed to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than noon on 20 June 2019. Mega Residential was directed to file its reply material by no later than noon on 4 July 2019.

[14] As no material was received from Mr Akdemir by noon on 20 June 2019, the Commission sent email correspondence that afternoon requesting that he advise when he intended to file his material.

[15] On 21 and 24 June 2019, the Commission attempted to telephone Mr Akdemir. There was no answer on both occasions, so voicemail messages were left requesting Mr Akdemir’s return call or response to the Commission’s email dated 20 June 2019, advising that his matter was at risk of proceeding to a non-compliance hearing.

[16] The Commission sent further email correspondence to Mr Akdemir on 25 June 2019, warning that if Mr Akdemir did not contact the Commission by 9:00am on 26 June 2019, the matter would be listed for a non-compliance hearing.

[17] On 26 June 2019, a Notice of Listing was sent to the parties via email and post, scheduling the matter for a non-compliance hearing on 28 June 2019.

[18] The non-compliance hearing proceeded before Deputy President Clancy on 28 June 2019. Mr Akdemir could not be contacted. Hamilton Murphy made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Akdemir’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Hamilton Murphy’s oral application.

[19] Shortly after the non-compliance hearing was concluded, Mr Akdemir returned the Commission’s phone call. Mr Akdemir was informed that the non-compliance hearing proceeded in his absence and that he would receive correspondence from the Commission later that day. The Commission further advised Mr Akdemir that he should respond to the correspondence, to which Mr Akdemir advised that he would do so.

[20] Also on 28 June 2019, a Notice of Listing was sent to the parties vacating the existing directions contained in the Notice of Listing dated 5 June 2019. Additional correspondence was also sent to Mr Akdemir’s email and postal addresses advising him of Hamilton Murphy’s s.399A application. Mr Akdemir was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4.00pm on 5 July 2019. The correspondence also noted that if the Commission did not receive a response, Mr Akdemir’s application for relief from unfair dismissal may be dismissed. A review of the postal tracking ID indicates that the correspondence was delivered to Mr Akdemir’s nominated postal address on 1 July 2019.

[21] On 9 July 2019, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing originally listed for 12 August 2019.

[22] To date, Mr Akdemir has not filed any material with the Commission.

[23] 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.”

[24] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[25] As Mr Akdemir did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[26] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than filing his unfair dismissal application and engaging with the Commission when it suited him, Mr Akdemir has failed to actively prosecute his case. Despite being provided additional opportunities to respond and being followed up by the Commission on several occasions, Mr Akdemir has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 28 June 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Akdemir’s application. This ends his unfair dismissal application.

[27] An Order to this effect will be issued shortly.

COMMISSIONER

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