Shannon Sammut v Marval Slabs T/A Utp Pty Ltd

[2020] FWC 6243

[2020] FWC 6243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shannon Sammut
v
Marval Slabs T/A UTP Pty Ltd
(U2020/11912)

COMMISSIONER BISSETT MELBOURNE, 20 NOVEMBER 2020

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

[1] On 3 September 2020, Mr Shannon Sammut (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant alleges he was dismissed from his employment with Marval Slabs T/A UTP Pty Ltd (Respondent) on 3 September 2020.

[2] The matter was listed for conciliation on 23 September 2020. A SMS text message was sent to the parties on 22 September reminding them of the conciliation scheduled for the following day.

[3] On 22 September 2020 the Respondent requested that the conciliation be adjourned to a later date. This request was granted and the conciliation of 23 September 2020 was cancelled on this day. A Notice of Listing was issued rescheduling the conciliation to 30 September 2020.

[4] On 24 September 2020 Employsure Law Pty Ltd submitted a Form F53 notifying the Commission that it had commenced to act for the Respondent.

[5] On 29 September 2020 a SMS text message was sent to the parties reminding them of the conciliation scheduled for the following day.

[6] On 30 September 2020 the Commission attempted to contact the Applicant for the conciliation on their nominated telephone number. Seven attempts were made by the conciliator to reach the Applicant. Each time a recorded message stated the number was not available, before automatically disconnecting. Correspondence was then issued to the Applicant at his nominated email address advising him that the conciliation had not proceeded due to absence.

[7] On 4 November 2020 the matter was allocated to my Chambers to list for Arbitration. Directions containing filing dates for the parties and listing the matter for Hearing were issued on this day. The parties were also directed to attend a case management Mention on 12 November 2020.

[8] On 12 November 2020 my Chambers attempted to contact the parties for the Mention. Despite several attempts, the Applicant could not be reached. The Respondent representative was in attendance. During the course of the Mention, the Respondent representative made a verbal application to dismiss the Applicant’s application for an unfair dismissal remedy pursuant to s.399A of the FW Act. Pursuant to the Fair Work Commission Rules 2013 I waived compliance with the Rules and accepted the oral application from the Respondent. The Respondent also made oral submissions in support of its application.

[9] On 12 November 2020, my chambers emailed correspondence to the Applicant’s nominated email address. The correspondence advised the Applicant that the Respondent had made an application under s.399A of the FW Act on the grounds that he has failed to attend a conference or hearing in relation to his application conducted by the Commission. The Applicant was directed to file with the Commission, and serve on the respondent, submissions and evidence or other documentary material in support of those submissions as to why the Commission should not dismiss the application. This material was sought by 4.00 pm on 19 November 2020. The correspondence stated that if the Commission did not receive a response, his matter may be dismissed.

[10] To date, the Applicant has not filed any material as directed or otherwise contacted the Commission.

[11] 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.

[12] I am satisfied that the Respondent’s verbal application made on 12 November 2020 is an application to have the matter dismissed for the Applicant’s failure to comply with a direction and failure to attend the Mention.

[13] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the basis of the oral submissions of the Respondent.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him. The Applicant has failed to attend the conciliation on 30 September, the Mention in relation to his application on 12 November 2020 and failed to comply with the direction of the Commission issued on that day.

[15] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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