Reza Gholami v B.M.D. Constructions Pty. Limited
[2023] FWC 1494
•26 JUNE 2023
| [2023] FWC 1494 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Reza Gholami
v
B.M.D. Constructions Pty. Limited
(U2023/2368)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 26 JUNE 2023 |
Application for an unfair dismissal remedy – application to dismiss pursuant to s.399A - application dismissed.
On 21 March 2023 Mr Reza Gholami (applicant) applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act) following dismissal from his employment as a Quality Coordinator with B.M.D. Constructions Pty. Limited (respondent) on 28 February 2023.
The matter was allocated to me on 8 May 2023. To facilitate the preparation of the matter for hearing or conference I made directions which were sent to parties on 8 May 2023 dealing with filing of materials, the process for seeking permission for representation, fixing a case management conference to deal with the location/method and scheduling of the hearing (Directions). On 11 May 2023 a notice of listing was sent to Mr Gholami and the respondent with details of the case management conference which was to be conducted by Microsoft Teams at midday on 14 June 2023.
The Directions required Mr Gholami to file and serve his initial materials by no later than 5:00pm AEST on Monday, 22 May 2023. He did not file any material. He did not request an extension to file materials, nor did he provide any explanation for his failure to comply with the Directions.
On 25 May 2023 my chambers received an email from Ms Reily Bibby, representative of the respondent, the text of which provided:
“I refer to Deputy President Gostencnik’s Directions, dated 8 May 2023, and specifically Directions 1 and 2 pertaining to the filing and service of material by the Applicant and the Respondent, respectively.
I note that the Respondent, to its knowledge, has yet not been served the Applicant’s material.
The Respondent sought clarification of this matter from the Applicant, by way of email, on Tuesday, 23 May 2023. The Applicant has not yet responded.
The Respondent respectfully seeks confirmation from Chambers that the Applicant’s material was filed by 5:00pm AEST Monday, 22 May 2023.
In consideration of the above, and in light of the aforementioned Directions, the Respondent also respectfully requests an extension of time for the filing of the Respondent’s material. In particular, the Respondent respectfully seeks an extension of a period of 14 days from the date the Respondent is served the Applicant’s material.”
My associate responded on the same day by an email to the parties confirming that the applicant had not filed in accordance with Directions, and he was to file his materials by no later than 5:00pm that day. The respondent was assured that it would receive a commensurate extension. Again, the applicant did not file any material, request an extension or provide any explanation for his failure to comply.
On 26 May 2023 my associate sent an email to the parties advising that because the applicant had not complied with Directions, the matter would be listed for a non-compliance hearing, which was listed at 2:00pm on 8 June 2023. The parties were required to confirm receipt of the notice of listing and appearances at least 24 hours before the hearing which the respondent did but the applicant did not.
Ms Bibby had joined the hearing on 8 June 2023 on behalf of the respondent. My associate made 3 attempts to contact the applicant by telephone but was not successful and was unable to leave a voicemail. The hearing proceeded in the applicant’s absence and the respondent indicated that it would be making an application to dismiss the application under s 399A of the Act. The respondent was reminded to copy in the applicant when filing the application to the Commission.
On 12 June 2023 Ms Bibby filed in the Commission and served on the applicant an application under s 399A that the Commission dismiss the applicant’s unfair dismissal remedy application on the basis of non-compliance set out above.
Section 399A of the Act sets out the following:
Dismissing applications
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.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).
The FWC may exercise its power under subsection (1) on application by the employer.
This section does not limit when the FWC may dismiss an application.
On 13 June 2023 an email was sent to the applicant from my chambers copying in the respondent, the text of which provided:
“Dear Mr Gholami
I refer to the matter above which was listed for case management conference last Friday, 9 June 2023, which you did not attend and at which the respondent made clear its intention to apply to have your application dismissed under s 399A of the Fair Work Act 2009.
The reasons for the respondent’s application are set out at 2.2 of the attached application.
You are to provide a written response to the application to dismiss by no later than 5.00pm (AEST) Tuesday, 20 June 2023.
In the absence of any response the Deputy President will determine your application on the materials before him.”
The applicant has not filed any materials to date, he failed to attend a non-compliance hearing, he has not provided any explanation for this non-compliance, nor has he filed any material in opposition to the respondent’s application under s 399A of the Act.
Based on the material before me, on the application of the respondent and for the reasons above I am satisfied that the power to dismiss in s 399A is enlivened. Although such a power should be sparingly exercised, I am persuaded that I should exercise the discretion under s 399A of the Act to dismiss the applicant’s application. He has been given ample opportunity to comply with the filing directions and to otherwise explain his noncompliance but has not done so. He has also been given an opportunity to respond to the respondent’s dismissal application but has not done so. It would in the circumstances be unfair to the respondent to keep the application alive.
The application is dismissed.
Order
I order that the application for an unfair dismissal remedy in U2023/2368 is dismissed.
DEPUTY PRESIDENT
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