Prashanth Chaudhary v Schneider Electric (Australia) Pty Limited

[2023] FWC 2682

[2023] FWC 2682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Prashanth Chaudhary
v

Schneider Electric (Australia) Pty Limited

(U2023/6714)

DEPUTY PRESIDENT SLEVIN SYDNEY, 13 OCTOBER 2023

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

1. An application has been made by Mr Prashanth Chaudhary seeking an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (FW Act). Mr Chaudhary alleged that he was unfairly dismissed from his employment with Schneider Electric (Australia) Pty Limited (Schneider). In the application Mr Chaudhary incorrectly identified the employer. Schneider pointed out the error and Mr Chaudhary requested in correspondence that the application be amended. I amend the application accordingly.   

1. Schneider opposed the application on the grounds that Mr Chaudhary was not dismissed. It stated that he was a casual employee, and he remains on record as being available to work. Directions were issued on 25 September 2023 for the filing and serving of material and the application was set down for arbitration on 18 October 2023 to hear the parties first, on the issue of whether there had been a dismissal and, if necessary, the merits of the dismissal. Mr Chaudhary failed to comply with the Directions. Schneider has made an application for the application to be dismissed on the ground that Mr Chaudhary has failed to comply with a Direction of the Commission. The Commission has power to dismiss applications for a failure to comply with directions pursuant to s 399A of Fair Work Act 2009 (Act).

Background  

1. The Commission’s files indicate that: 

·On 22 July 2023 Mr Chaudhary lodged with the Commission, using its online lodgment service, an application seeking an unfair dismissal remedy.  

·On 7 August 2023, Schneider filed a Form F3 - Employer response to unfair dismissal application. The response was in essence that Mr Chaudhary had not been dismissed.

·The application was listed for telephone conciliation on 23 August 2023. Mr Chaudhary did not attend. 

·The Commission sent Mr Chaudhary a letter on 23 August 2023 inviting him to email the Commission within 2 days as to when he would next be available to attend a conference and that if nothing further is received the matter would be allocated to a member of the Commission for arbitration. 

·On 23 August 2023 Mr Chaudhary advised the Commission that he did not have time to attend a conference and considered that there was no point to pursuing the application. Mr Chaudhary was asked to confirm in writing if he wished to discontinue the matter. No response was provided. 

·On 28 August 2023 the Commission wrote to Mr Chaudhary stating the matter would be referred to a member of the Commission for arbitration. The letter notified him that a date for arbitration would be set and that directions would be issued for the preparation, lodging and serving of documents in support of his case. It also informed Mr Chaudhary that if he failed to comply with any directions the application may be dismissed. 

1. On 8 September 2023 the matter was allocated to my chambers for arbitration. The matter was listed for a directions hearing on 19 September 2023. A copy of draft directions was provided to the parties prior to the hearing. Mr Chaudhary did not attend. After attempts were made to contact the Mr Chaudhary, Directions were issued on 25 September 2023 in the form earlier circulated. The first of those directions was: 

The Applicant (Mr Prashanth Chaudhary) is required to file the following material with the Fair Work Commission, and provide to the Respondent, any witness statements, documents and submissions he wishes to rely upon in support of his application for an unfair dismissal remedy, by no later than close of business on Thursday, 28 September 2023.  

1. Contrary to the Direction, Mr Chaudhary did not file and serve material on 28 September 2023. 

1. On 5 October 2023, Schneider wrote to the Commission seeking to have the matter closed on the ground that Mr Chaudhary had failed to comply with the Direction. Schneider also indicated that it had attempted to contact Mr Chaudhary to resolve his claim but had been unable to contact him. 

1. Mr Chaudhary did respond to Schneiders application with a brief email on the same day. His email commenced with the sentence I don’t care anymore seriously. It went on to direct allegations against a manager who he claims dismissed him. The Commission wrote to Mr Chaudhary asking him to clarify whether he wished to discontinue the proceedings and requesting that if he did to provide an explanation for not filing in accordance with the Directions and when he could provide written evidence and submissions. No response was received. 

1. The Commission wrote to Mr Chaudhary again on 11 October 2023 indicating that Schneider’s application to dismiss his unfair dismissal application would be determined on 13 October 2023 and inviting him again to explain his failure to file material or alternatively to advise if he did not wish to continue the application. No response was received.  

Consideration

1. Section 399A relevantly gives the Commission a discretion to dismiss an application for an unfair dismissal remedy if satisfied that an applicant has unreasonably failed to comply with a direction or order of the Commission relating to the application.  

1. Mr Chaudhary provided no explanation for his non-compliance. His only communications were to the effect that that he no longer cared about his application.  He was given an opportunity on a number of occasions to conduct his case in accordance with the Commission’s Directions. He did not to do so. I find it was unreasonable for him to not follow the Commission’s Direction. 

1. Having found that Mr Chaudhary has unreasonably failed to comply with a direction I have a discretion to dismiss the application. I propose to do so. In exercising that discretion, I take into account the opportunities afforded to Mr Chaudhary in the various communications set out above. I also take into account that Mr Chaudhary’s application involves a contest over whether he was dismissed which necessarily requires a consideration of matters of fact. Section s 397 requires the Commission to conduct a conference or hold a hearing where facts are disputed. Mr Chaudhary has failed to attend a telephone conference and telephone directions hearing in relation to his application without explanation. He also failed to provide material opposing the dismissal of his claim despite being given an opportunity to do so. Based on the few communications received from Mr Chaudhary I have no confidence that he will attend the hearing scheduled. Consequently, I will dismiss the matter. 

1. An Order dismissing the matter will be issued separately.

DEPUTY PRESIDENT

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