Olandrewaju (Larry) Odubona v Woolworths Group Limited

[2018] FWC 1394

[2018] FWC 1394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Olandrewaju (Larry) Odubona
v
Woolworths Group Limited
(U2017/13524)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 MARCH 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 19 December 2017, Mr Olandrewaju (Larry) Odubona made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (The Act). Mr Odubona said that his employment had been terminated by Woolworths Group Limited (Woolworths) on 18 December 2017.

[2] The matter subject of conciliation on 19 January 2018, however the matter did not settle. Consequently, the matter was referred for arbitration before a Member of the Commission.

[3] On 31 January 2018, directions were issued by the Commission. Mr Odubona was directed to file his submissions in support of his application by 19 February 2018 and Woolworths were directed to file their submissions in reply by 12 March 2018. However, Mr Odubona failed to file any material.

[4] On 19 February 2018, a short message service (SMS) was sent to Mr Odubona stating that his submissions were now overdue. This message requested that Mr Odubona contact the Commission as soon as possible to discuss. He did not contact the Commission.

[5] On 20 February 2018, the Commission attempted to contact Mr Odubona by telephone regarding his failure to file submissions. He did not answer and he did not return the Commission’s call. An email was subsequently sent to Mr Odubona stating that his submissions were now overdue. This email advised that if the Commission did not receive a response, the matter may be listed for a non-compliance hearing.

[6] On 21 February 2018, a further email was sent to Mr Odubona regarding his failure to file submissions. This email stated that if the Commission did not receive a response, the matter would be listed for a non-compliance hearing on 23 February 2018. The Commission also contacted Mr Odubona by telephone. As he did not answer, a voicemail was left with information of the non-compliance hearing and advising that a Notice of Listing for the matter would soon be sent to the parties. A copy of the Notice of Listing was express posted to Mr Odubona.
[7] On 23 February 2018, the matter was subject of a non-compliance hearing before Deputy President Gooley. Despite attempts to contact Mr Odubona, he did not attend the non-compliance hearing. At the hearing Woolworths made an oral application under section 399A of the Act requesting that the matter be dismissed due to the failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Woolworths’s oral application. Accordingly, the directions of the Commission and the hearing dates were vacated.

[8] On 23 February 2018, following the non-compliance hearing, a letter was sent to Mr Odubona by email advising him that an application under section 399A had been made by Woolworths. Mr Odubona was directed to file and serve any submissions providing reasons as to why the Commission should not dismiss his application by 5 March 2018. This letter stated that if Mr Odubona failed to respond by 5 March 2018, his application for relief from unfair dismissal would be dismissed.

[9] To date, Mr Odubona has not filed any material with the Commission.

[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.

....

(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.

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

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than attending the initial conciliation, Mr Odubona has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend at the non-compliance hearing. In these circumstances, I will exercise my discretion under s.399A(1)(b) and dismiss Mr Odubona’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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