Royce Zanetic v Outcare Incorporated T/A Outcare

[2018] FWC 1522

[2018] FWC 1522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Royce Zanetic

v

Outcare Incorporated T/A Outcare

(U2017/13248)

Deputy President Clancy MELBOURNE, 14 MARCH 2018

Application for an unfair dismissal remedy.

1. On 14 December 2017, Mr Royce Zanetic made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Zanetic was notified of his dismissal by Outcare Incorporated T/A Outcare on 24 November 2017 with the dismissal taking effect on 27 November 2017.

1. The matter was listed for conciliation on 12 January 2018, however it could not proceed as Mr Zanetic could not be contacted, despite six attempts to do so via telephone. Consequently, directions were issued and the matter was listed for hearing.

1. Mr Zanetic was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon on Monday, 26 February 2018. Mr Zanetic did not file any material by that time.

1. The Fair Work Commission attempted to telephone Mr Zanetic regarding his outstanding material and voicemails were left on 26 and 27 February 2018 seeking a return call. An email was also sent to Mr Zanetic on 27 February 2018 asking that he contact the Commission regarding his submissions and advising that, should no extension request or submission be received from him, the matter would be listed for a non-compliance hearing.

1. As Mr Zanetic did not comply with the directions, the matter was listed for a non-compliance hearing before me on 2 March 2018.

1. Mr Zanetic did not attend the non-compliance hearing. Outcare Incorporated T/A Outcare made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Zanetic had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Outcare Incorporated T/A Outcare’s oral application.

1. On 2 March 2018, Mr Zanetic was sent correspondence informing him of Outcare Incorporated T/A Outcare’s s.399A application. Mr Zanetic was directed to file submissions and other documentary material in respect of this application by close of business on Friday, 9 March 2018. Mr Zanetic was advised that if he failed to comply with this direction, his application would be dismissed.

1. Mr Zanetic did not file any material with the Commission.

1. 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.

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

1. As Mr Zanetic did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Zanetic has failed to respond to the attempts by the Commission to contact him. He has shown no willingness to prosecute his case and has provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I will exercise my discretion under s.399A of the Act and dismiss Mr Zanetic’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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