Pavith Ariyawansa v Coles Supermarkets Australia Pty Ltd T/A Coles

[2020] FWC 4461

[2020] FWC 4461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pavith Ariyawansa
v
Coles Supermarkets Australia Pty Ltd T/A Coles
(U2020/8575)

COMMISSIONER BISSETT MELBOURNE, 24 AUGUST 2020

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

[1] On 22 June 2020 Mr Pavith Ariyawansa (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Coles Supermarkets Australia Pty Ltd T/A Coles.

[2] The matter was listed for conciliation on 15 July 2020. Several attempts were made to contact the Applicant on his nominated contact number on this date but none were successful. A follow up letter was sent to the Applicant on this date, advising him that he had two days to advise the Commission if his preference was for the matter to be listed for another conciliation, otherwise the matter would proceed to be listed for arbitration.

[3] As no response was received from the Applicant, the matter was referred to my Chambers for management.

[4] On 20 July 2020 Directions were issued to the parties listing the matter for Hearing by Video on 10 September 2020. The Directions also contained filing instructions for the parties. The Directions also listed the matter for a telephone Mention on 31 July 2020.

[5] The Applicant did not attend the Mention on 31 July 2020.

[6] On 7 August 2020 the Applicant’s first submissions and evidentiary material were due. None were provided by the Applicant.

[7] On 10 August 2020 the Applicant was emailed seeking an urgent update as to whether he intended to file submissions, by no later than noon on 11 August 2020. No response was received.

[8] On 11 August 2020, the matter was listed for a non-compliance hearing by telephone on 14 August 2020.

[9] On 14 August 2020 several attempts were made to contact the Applicant by telephone and a voicemail was left asking him to urgently contact the Commission, as he had not appeared at the non-compliance hearing. The voicemail informed the Applicant that the non-compliance hearing would proceed in his absence.

[10] During the hearing the Respondent made a verbal application under s. 399A of the FW Act to dismiss the Applicant’s unfair dismissal application. Following the non-compliance hearing, the Applicant was contacted by email informing him of this application and directed him to file by noon on 21 August 2020 any reasons or evidence as to why his unfair dismissal application should not be dismissed. The correspondence warned the Applicant that if the Commission did not hear from him by noon on 21 August 2020, his application would most likely be dismissed without any further correspondence from him.

[11] To date, the Applicant has not filed any material with the Commission.

[12] Section 399A of the FW 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.

[13] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to make a request for an extension to file material and has not provided an explanation to the Commission for his failure to comply with the directions of the Commission.

[15] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued with this decision.

COMMISSIONER

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