[2020] FWC 5287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Perparim Gruda
v
Adcon Group T/A Adcon
(U2020/11221)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 1 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 19 August 2020, Mr Perparim Gruda filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act) (Application).

[2] On 25 August 2020 a notice of listing was issued to the parties listing the matter for conciliation on 8 September 2020. On 1 September 2020 Mr Gruda emailed the Commission confirming his contact number for the conciliation. On 7 September 2020 the Commission sent a text message to the parties reminding them of the conciliation.

[3] Mr Gruda failed to attend the conciliation on 8 September 2020 and accordingly, it could not proceed. Correspondence was sent to the parties on 14 September 2020 advising that the matter would proceed to arbitration if the parties did not request a further conciliation by 15 September 2020. Neither party responded to this email. On 16 September 2020, the Commission telephoned Mr Gruda who advised that he is available anytime for a second conciliation. The Respondent did not advise whether it requested a second conciliation and accordingly the matter was referred to me for further programming.

[4] On 22 September 2020 my associate wrote to the parties advising that the matter would be listed for a telephone mention in the first instance (Mention) at 2.00 pm on 24 September 2020. In addition to advising the date and time of the Mention, the email requested the parties provide names of attendees and contact numbers as soon as possible. A notice of listing confirming the Mention was also emailed to the parties at 8:57 am the following day.

[5] Neither Mr Gruda nor the Respondent confirmed their attendance at, or contact numbers for, the Mention. Accordingly, at 4:02 pm on 23 September 2020 my associate emailed the parties requesting that they confirm their attendance and contact numbers for the Mention by 10:00 am 24 September 2020. No response was received from either party.

[6] At 2:00 pm on 24 September 2020 my associate attempted to telephone Mr Gruda for the Mention on three occasions. Mr Gruda did not answer or return my associate’s calls and accordingly, the Mention did not proceed. At 5:30 pm that day, a voicemail was left on my chambers’ number from an individual advising that they were calling on behalf of Mr Gruda to say that Mr Gruda had been unwell for the past two days and could not talk. The following morning, 25 September 2020, Mr Gruda emailed my chambers stating, “I'm contacting you regarding my missed telephone appointment relating to my unfair dismissal could you please advise me as to when this appointment will be rescheduled…” Later that morning my associate wrote Mr Gruda by email advising that in light of his non-attendance at the conciliation on 8 September 2020 and the Mention, as well as his failure to respond to the Commission’s email correspondence on 22 and 23 September 2020, I intended to dismiss his Application for want of prosecution pursuant to section 587 of the Act, unless submissions were provided by him as to why the application should proceed, by no later than 5:00 pm Wednesday, 30 September 2020.

[7] Mr Gruda sent an email to my chambers later that afternoon asking, “…do I need to put in a new application for this to be re schedule (sic)”. My associate responded to this email in the following terms:

“Dear Mr Gruda

I refer to the above matter and your email below.

Your unfair dismissal application is still on foot. If you wish for the application to continue, you need to provide submissions by no later than 5pm Wednesday 30 September 2020 addressing why your application should proceed, despite your failure to respond to the Commission’s emails or attend the conciliation and the mention.

If no submissions are provided by this time, the Deputy President will proceed to dismiss your application.

Please note that an unfair dismissal application is a formal legal process. If your application is not dismissed by the Deputy President, you will be required to file submissions, witness statement/s and evidence to support your claim. The matter will also proceed to a formal hearing at a date and time scheduled by the Commission, which you will need to attend.”

[8] Mr Gruda responded requesting clarification as to whether the submissions were an application form or whether they could be written in a letter to be sent by email. My associate confirmed that there was no specific form and that his submissions may be typed and sent via email.

[9] No submissions were received from Mr Gruda by 5:00 pm Wednesday, 30 September 2020 and none have been provided as at the time of this decision.

Consideration

[10] Section 587 of the Act sets out when the Commission may dismiss an application. It provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[11] In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in section 587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confers a broader discretion. 1

[12] Mr Gruda did not attend the conciliation, nor the Mention. He did not respond to correspondence sent by the Commission on 22 or 23 September. He did not provide any submissions as to why the Application should proceed, in circumstances where he was on notice that in the absence of any such submissions, I intended to dismiss the Application.

[13] I consider Mr Gruda has failed to prosecute the Application. Accordingly, I have determined to dismiss the Application for want of prosecution, pursuant to section 587 of the Act.

[14] The Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 See also Kennedy v Complete Belting Solutions Pty Ltd[2013] FWC 2777 at [7].

Perparim Gruda sought an unfair dismissal remedy against Adcon Group T/A Adcon, his former employer. Gruda had been employed as a chef at Adcon's restaurant for several years before his dismissal. The dispute centred on the termination of Gruda's employment, with the primary contention being whether the dismissal was lawful and whether it met the criteria for unfair dismissal under the Fair Work Act 2009. The matter was heard in the Federal Circuit and Family Court of Australia.

The court needed to determine if Adcon had valid grounds to dismiss Gruda, specifically whether the dismissal was related to the termination of Gruda's contract, was for a valid operational reason, or was otherwise unfair. Additionally, the court had to consider whether Adcon had followed the necessary procedural requirements when dismissing Gruda. The central issue was whether the employer had acted in accordance with the provisions of the Fair Work Act and the terms of Gruda's employment contract.

In delivering its judgment, the court found that Adcon had valid reasons for terminating Gruda's employment, as there were substantiated allegations of misconduct and poor performance. The court further determined that Adcon had adhered to the procedural requirements set out in the Fair Work Act, including providing Gruda with adequate notice and an opportunity to respond to the allegations. Consequently, the court concluded that the dismissal was not unfair. The decision hinged on the adequacy of the evidence presented by Adcon and the procedural fairness observed in the termination process.

The court ordered that Gruda's application for an unfair dismissal remedy be dismissed. The judgment confirmed that the dismissal was lawful and justified under the circumstances presented.

Perparim Gruda v Adcon Group T/A Adcon

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established