Sonny Rasic v Grace Information Management

[2017] FWC 3361

[2017] FWC 3361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonny Rasic
v
Grace Information Management
(U2017/2125)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 28 February 2017, Mr Sonny Rasic made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Rasic said he was notified of his dismissal on 27 February 2017, with it taking effect the same day.

[2] On 1 March 2017, a Notice of Listing was sent to the parties, advising of a conciliation on 3 April 2017.

[3] On 30 March 2017, Mr Rasic advised the Fair Work Commission of his telephone number, however, said he could only be reached via Viber on that contact phone number. The following day, the Commission responded to Mr Rasic, advising that a call could not be placed through Viber and if an adjournment was sought, to confirm same in writing as soon as possible, or to otherwise provide an alternate contact number. Mr Rasic’s response was that he is; “currently overseas undertaking medical examinations and treatment. I can either postpone the phone conference or alternatively can be reached on an overseas mobile phone number. Please advise how to proceed.” The Commission then asked Mr Rasic when he may be returning so the matter may be postponed.

[4] On 3 April 2017 prior to the scheduled conciliation, a Commission staff member spoke with Grace Information Management (GIM) and advised the conciliation was unable to proceed due to the conciliator being unwell. GIM agreed to have the conciliation re-listed and the staff member advised they would attempt to telephone Mr Rasic later that day to confirm his availability. Mr Rasic sent an email to the Commission on the same day, advising “at this stage I am undergoing treatment and am not sure how long will it [sic] take to complete it. I hope to be back as soon as I get better. I can be reached on a mobile phone number or viber or email. How do you prefer to communicate?”

[5] On 4 April 2017, a Notice of Listing was sent to the parties advising the new conciliation date of 1 May 2017.

[6] An attempt to telephone Mr Rasic was made on 26 April 2017 in order to confirm his contact telephone number for the conciliation, however, no message could be left. This was followed up with email correspondence. An SMS message was sent to Mr Rasic on 28 April 2017, reminding him of the upcoming conciliation. Ultimately, the conciliation could not take place as Mr Rasic could not be contacted on 1 May 2017, despite three attempts by telephone and two follow up email messages seeking a response.

[7] Mr Rasic did not respond so on 11 May 2017, directions were issued and the matter was listed for hearing. Mr Rasic was directed to file an outline of argument, statement(s) of evidence and document list by no later than noon on Monday 29 May 2017.

[8] On 24 May 2017, an SMS message was sent to Mr Rasic, reminding him that his written submissions were due to be filed the coming Monday. Mr Rasic did not file any material by the due date.

[9] On 30 May 2017, the Commission twice attempted to contact Mr Rasic via telephone with no success. An email was sent which advised that if no contact was received from Mr Rasic, his matter would be listed for a non compliance hearing on 2 June 2017. An SMS message was also sent which sought a return call. The following day, a further attempt to contact Mr Rasic via telephone was made, which was also unsuccessful and no message was able to be left.

[10] As no material had been filed, the matter was listed for a non compliance hearing before Deputy President Gooley on 2 June 2017.

[11] Mr Rasic did not attend the non compliance hearing. GIM made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Rasic had failed to comply with the direction of the Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted GIM’s oral application. Correspondence was then sent to Mr Rasic informing him of GIM’s s.399A application. Mr Rasic was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Monday 12 June 2017.

[12] To date, Mr Rasic has not filed any material with the Commission.

[13] 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.

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

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

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Rasic has failed to respond to the many attempts by the Commission to contact him. Since 3 April 2017, there have been at least 15 attempts to contact Mr Rasic which he has failed to respond to. He has never provided evidence of his medical condition or treatment. Mr Rasic has provided no explanation for his failure to comply with the directions for the hearing or his non attendance at the non compliance hearing. Mr Rasic has also failed to respond to the directions made as a result of 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 Rasic’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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