Peter Brattusa v Advanced Dairy Systems

[2017] FWC 125

[2017] FWC 125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Brattusa
v
Advanced Dairy Systems
(U2016/12123)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 JANUARY 2017

Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A.

[1] On 4 October 2016 Mr Peter Brattusa made an application for remedy for unfair dismissal under s.394 of the Fair Work Act (the Act). Mr Brattusa’s employment had been terminated by Advanced Dairy Systems (ADS) on 26 September 2016.

[2] On 10 October 2016, ADS filed a Form F3 – Employer Response to Unfair Dismissal Application, raising a jurisdictional objection to Mr Brattusa’s application on the basis that he was not dismissed as his dismissal was a case of genuine redundancy.

[3] The matter was initially listed for conciliation on 4 November 2016 but was subsequently rescheduled due to conciliator availability. On 3 November 2016, the Fair Work Commission (the Commission) telephoned Mr Brattusa to advise him and ascertained he was available on 8 November 2016 for conciliation. On the same day, the Commission telephoned ADS which also confirmed its availability for conciliation on 8 November 2016.

[4] The conciliation listed for 8 November 2016 could not take place because Mr Brattusa did not attend. Consequently, the conciliator sent an email to Mr Brattusa requesting advice on whether he wished for the conciliation to be rescheduled. Mr Brattusa did not respond to this correspondence. As such, the matter was referred for further programming on 14 December 2016.

[5] On 17 December 2016, the Commission attempted to contact Mr Brattusa by telephone. As Mr Brattusa was not available, a voice message was left requesting that he contact the Commission regarding his application.

[6] On the same day, the Commission telephoned ADS to advise that a Notice of Listing providing details of a Conference/Hearing and Directions for filing submissions would be issued. ADS referred to Mr Brattusa’s non-attendance at conciliation and was informed that if Mr Brattusa did not comply with the issued Directions, ADS could apply for the matter to be dismissed under s.399A of the Act.

[7] On 18 November 2016, Mr Brattusa telephoned the Commission and was advised that the matter was to be listed and Directions would be issued for him to file by 9 December 2016. The Commission emailed Mr Brattusa template documents that same day to assist him with filing submissions and confirmed they were due by noon on 9 December 2016.

[8] A Notice of Listing was subsequently sent to parties listing the matter for Jurisdiction and Arbitration Conference/Hearing in Shepparton on 17 and 18 January 2017.

[9] On 13 December 2016, ADS contacted the Commission to inquire whether submissions had been received from Mr Brattusa. The Commission advised that it had not received any material from Mr Brattusa. Following an inquiry as to how they could apply for the matter to be dismissed, the Commission advised ADS that if it wished to make a 399A application it would either need to file a Form F1 or make the request at a non compliance hearing in relation to the matter.

[10] On the same day, the Commission twice attempted to contact Mr Brattusa by telephone regarding his non compliance with Directions, however both of these attempts were unsuccessful. A voice message was left requesting that Mr Brattusa urgently contact the Commission.

[11] On 14 December 2016, the Commission again unsuccessfully attempted to telephone Mr Brattusa. A further voice message was left advising him that his matter would be listed for a non compliance hearing.

[12] On 15 December 2016, a Notice of Listing was sent to parties providing details of the non compliance hearing before me on 19 December 2016.

[13] The non compliance hearing on 19 December 2016 was only attended by ADS. At the hearing, ADS made an application that Mr Brattusa’s application be dismissed pursuant to s.399A of the Act. I advised ADS that Mr Brattusa would be given until noon on 30 December 2016 to provide submissions as to why the Commission should not dismiss his application.

[14] On 19 December, a letter was sent by the Commission to Mr Brattusa advising of my direction that he provide submissions as to why his application should not be dismissed by no later than noon on 30 December 2016.

[15] To date, Mr Brattusa has neither responded to the numerous attempts to contact him nor filed any material with the Commission in relation to the s.399A application.

[16] 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.

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

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

[19] The power to dismiss an application if the non compliance was unreasonable is discretionary. Despite numerous requests and attempts to contact Mr Brattusa, he has not responded. Mr Brattusa has shown no willingness to prosecute his case. He failed to attend the conciliation and provided no explanation for this. He has provided no explanation for his failure to attend the non compliance hearing and nor has he complied with the two directions to file material or provided an explanation for this failure. I find his failures to attend and file material unreasonable. In these circumstances, I will exercise my discretion and dismiss Mr Brattusa’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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