Peter Geronymakis v Heathgate Resources Pty Ltd

[2019] FWC 6724

[2019] FWC 6724

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Peter Geronymakis
v
Heathgate Resources Pty Ltd
(U2019/6435)

COMMISSIONER HAMPTON ADELAIDE, 10 OCTOBER 2019

Application for relief from unfair dismissal – failure of Applicant to attend directions conference – Applicant failed to file evidentiary materials – s.399A application made by Respondent – no explanation or response from Applicant – unreasonable act or omission – discretion exercised – unfair dismissal application dismissed.

[1] On 11 June 2019, Mr Peter Geronymakis (the Applicant) made an application to the Commission under s.394 of the Fair Work Act 2009 (the FW Act) for an alleged unfair dismissal from his former employer Heathgate Resources Pty Ltd (Heathgate or the Respondent).

[2] The application was subject to conciliation by telephone on 12 August 2019 before a Commission Conciliator. The matter was not resolved at that conference.

[3] The matter was subsequently allocated to the Commission as currently constituted for determination. A directions conference to schedule the determination of the unfair dismissal matter was listed for 22 August 2019 and notice of listing for the conference was provided to both parties. Mr Geronymakis received this notice via the contact details provided on his application. The Applicant did not participate in this conference, nor did anyone on his behalf.

[4] Directions were subsequently issued on 22 August 2019 for the filing of written materials by the parties, including witness statements and any other evidentiary materials to be relied upon, in preparation for a determinative process to be conducted. The parties were advised in the Directions that:

“5. Compliance with these directions is mandatory and a failure to do so may disadvantage the party concerned without further notice.”

[5] At the request of the Respondent, the matter was listed for a Member Assisted Conciliation (MAC) before another Member of the Commission. On the afternoon prior to the scheduled conference, Mr Geronymakis emailed the Commission to advise that due to “unforeseen work commitments” 1 he would not be able to attend the conciliation conference, but still intended to proceed with his application. As a result of that email, the MAC was cancelled and the file returned to this arm of the Commission for determination.

[6] In accordance with the Directions issued, Mr Geronymakis was required to file any materials in support of his application on or before 6 September 2019. 2 Nothing has been filed on his behalf as required by these Directions. I also note that following the notification of his inability to attend the scheduled MAC, no further contact was received from Mr Geronymakis, or anyone on his behalf. This is despite various attempts being made by the Commission to contact the Applicant by phone and text message on 4, 9, 10 and 17 September 2019.

[7] On 18 September 2019, Heathgate made an application pursuant to s.399A of the FW Act for the matter to be dismissed. This application was also served on Mr Geronymakis by email at that time. Heathgate sought an Order to dismiss the matter on the basis that:

“1. The applicant failed to attend the Directions Conference held 10am 22 August 2019.

2. The applicant failed to attend the Member Assisted Conciliation (MAC) held 12pm, 28th August 2019.

3. The applicant failed to submit an outline of his case, including the basis of his application and a statement of evidence by 6th September 2019.

4. Any attempts to contact the Applicant have been unsuccessful.” 3

[8] Later on 18 September 2018 my Chambers distributed written Directions to both parties in relation to Heathgate’s s.399A application (the s.399A Directions). The s.399A Directions rescinded the 22 August Directions and provided arrangements for determining the s.399A application. Amongst other matters, the s.399A Directions made clear that the Commission will determine the s.399A application based on the materials filed and that this would be undertaken without further notice or hearing in the event that Mr Geronymakis did not provide any materials contesting the s.399A application.

[9] Heathgate filed a Statutory Declaration in support of their s.399A application, in compliance with the Directions. Mr Geronymakis did not file any material in opposition to the s.399A application, or otherwise advance any position on the matter, by the required date of 4 October 2019 set out in the s.399A Directions, or subsequently.

[10] 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.”

[11] The evident purpose of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application. Unreasonable in this context would include non-compliance without any reasonable excuse. 4

[12] Mr Geronymakis has been given notice of the s.399A application and the intention of the Commission to deal with that matter in the absence of compliance with the relevant Directions. I am satisfied that the Applicant has had an adequate and reasonable opportunity to be heard on this matter and has been afforded procedural fairness. The basis of the s.399A application is also effectively uncontested, and as a result, it is not necessary for the Commission to conduct a hearing in connection with that matter. 5

[13] Accordingly, as advised to the parties, I now determine the s.399A application on the basis of the material presently before the Commission.

[14] The s.399A application has been made by the employer as required by s.399A(2) of the FW Act.

[15] The factual basis for all four of the grounds have been made out by Heathgate. However, the MAC was a voluntary process and Mr Geronymakis advised the Commission and the Respondent that he would not be attending. Ground 4 is also true and relevant to discretion, but is not of itself a ground to dismiss the unfair dismissal application under s.399A of the FW Act in the circumstances of this case.

[16] Pursuant to s.399A(1)(a) and (b) of the FW Act, the Commission may dismiss the unfair dismissal application if satisfied that Mr Geronymakis failed to attend a conference or hearing conducted by the Commission or comply with a direction or order made in relation to the application.

[17] Mr Geronymakis failed to attend the Direction Conference conducted on 22 August 2019 and did not comply with the Directions issued that same day. Mr Geronymakis has not provided any reason for his failures and I find that his actions were unreasonable. This provides a basis upon which the Commission may consider whether to dismiss the unfair dismissal application.

[18] I am satisfied that Mr Geronymakis has been provided with a reasonable opportunity to advance his case and has not done so. Indeed, Mr Geronymakis has largely failed to engage with the Commission regarding his application and has, in effect, now abandoned the matter. In all of the circumstances I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[19] Accordingly, Mr Geronymakis’s unfair dismissal application is to be dismissed. An Order 6 to that end is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

No Appearance on behalf of the Applicant, Mr Geronymakis.

J Pepper, on behalf of Heathgate Resources Pty Ltd.

Directions Conference details:

2019

By Telephone

22 August.

Written submissions:

Heathgate Resources Pty Ltd T/A Heathgate Resources – 19 September 2019.

Printed by authority of the Commonwealth Government Printer

<PR712850>

 1   Email from the Applicant, 27 August 2019.

 2   Direction 2. 22 August 2019.

 3   Form F4 received from Heathgate.

 4   See the Explanatory Memorandum to the Fair Work Amendment Act 2012 at 161 – 163.

 5 Section 397 of the FW Act.

 6   PR712887.