Peter Sardelis v Cox Automotive T/A Manheim Pty Ltd

[2018] FWC 1832

[2018] FWC 1832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Sardelis
v
Cox Automotive T/A Manheim Pty Ltd
(U2018/135)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 MARCH 2018

Application for an unfair dismissal remedy.

[1] On 4 January 2018, Mr Peter Sardelis 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 Sardelis said he was notified of his dismissal on 1 December 2017, with it taking effect on 4 December 2017.

[2] On 22 January 2018, Manheim Pty Ltd (Manheim) filed its Form F3 – Employer response to unfair dismissal application and stated Mr Sardelis’ application had been lodged outside of the 21 day timeframe.

[3] The matter was listed for conciliation on 19 February 2018, however it did not resolve.

[4] On 23 February 2018, the Commission listed the matter for Extension of Time (Effective Date of Dismissal) Conference/Hearing. Requirements to file material were also issued, with Mr Sardelis due to file his Outline of Argument: Extension of Time, Statement of Evidence and Document List by noon on 2 March 2018. Mr Sardelis did not file any material.

[5] On 5 March 2018, the Commission sent an email to Mr Sardelis confirming that material was due to be filed the previous Friday and any request for an extension to file submissions should be put in writing to the Commission as soon as possible. Later that day, an attempt to telephone Mr Sardelis was made and a voicemail message was left seeking a return call.

[6] On 6 March 2018, a further voicemail message was left for Mr Sardelis requesting that he telephone the Commission as soon as possible in relation to the status of his material. An email was then sent which advised in the absence of a response from him, the matter would be listed for a non-compliance hearing on 9 March 2018.

[7] On 7 March 2018, a third email was sent to Mr Sardelis which again confirmed if no advice was received from him, the matter would proceed to a non-compliance hearing on 9 March 2018. Another attempt to telephone Mr Sardelis was made that afternoon, however there was no option to leave a voicemail message. The Notice of Listing for the non-compliance hearing was then emailed to Mr Sardelis.

[8] On 8 March 2018, an SMS message was sent to Mr Sardelis which confirmed the non-compliance hearing would proceed via telephone at 12.00pm the following day.

[9] The non-compliance hearing proceeded before Deputy President Colman on 9 March 2018. Mr Sardelis could not be contacted. Manheim made an oral application pursuant to s.399A of the Act that the matter be dismissed as Mr Sardelis had failed to comply with a direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Manheim’s s.399A application.

[10] On 13 March 2018, correspondence was sent to Mr Sardelis informing him of Manheim’s s.399A application. This correspondence was sent via email and post. Mr Sardelis was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 20 March 2018. The correspondence stated that if the Commission did not receive a response, Mr Sardelis’ application for relief from unfair dismissal would be dismissed.

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

[12] 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.

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

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Sardelis has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application and attending conciliation, Mr Sardelis has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Sardelis’ application.

[16] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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