Sree Bala v Melbourne City Council T/A City of Melbourne

[2019] FWC 5143

[2019] FWC 5143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sree Bala
v
Melbourne City Council T/A City of Melbourne
(U2019/3497)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 JULY 2019

Application for an unfair dismissal remedy.

[1] On 28 March 2019, Mr Sree Bala made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Bala said he was notified that his employment had been terminated by Melbourne City Council T/A City of Melbourne on 7 March 2019, and that the dismissal took effect on the same day.

[3] The Form F2 named the Australian Municipal, Administrative, Clerical & Services Union (ASU) as Mr Bala’s representative, and was filed via email on his behalf.

[4] The matter was initially listed for conciliation on 7 May 2019, however, due to operational requirements, the Commission sought to reschedule the conciliation. The parties provided their availability and the conciliation was relisted for 3 June 2019.

[5] The matter proceeded to conciliation on 3 June 2019 but did not resolve. The matter was then referred for further programming.

[6] On 4 June 2019, the Commission issued a Notice of Listing scheduling the matter for Arbitration Conference/Hearing on 12 and 13 August 2019. Directions were also issued requiring Mr Bala to file an Outline of Argument, Statement(s) of Evidence and Document List by no later than noon on 24 June 2019. The Notice of Listing was sent to the nominated email addresses of both the ASU and Mr Bala.

[7] On 20 June 2019, the ASU sent correspondence via email to the Commission requesting an extension of time to file Mr Bala’s materials until 27 June 2019. The Commission granted the extension of time and an amended Notice of Listing was issued on 24 June 2019, directing Mr Bala to file his material by no later than noon on 27 June 2019.

[8] In the early morning of 27 June 2019, the ASU filed a Form F54 – Notice of representative ceasing to act (Form F54) by way of email.

[9] No material was received from Mr Bala by noon on 27 June 2019.

[10] The Commission attempted to telephone Mr Bala on 28 June 2019. As there was no answer, a voicemail message that was converted to a text message was left, which provided the Commission’s telephone number for Mr Bala to return the call. An email was also sent to Mr Bala on 28 June 2019, reminding him that his materials were due for filing the day prior and requesting he contact the Commission.

[11] On 2 July 2019, a telephone call was made by the Commission to Mr Bala to follow up on his overdue materials, which had not yet been filed. Mr Bala answered the call and advised he was under the impression the ASU was still representing him. The Commission explained that the ASU had filed a Form F54, to cease acting as his representative. Mr Bala advised the Commission that as he had recently experienced a medical incident, he required more time to file his materials. The Commission advised Mr Bala that he was required to seek an extension of time to file his materials by emailing the Commission. Mr Bala requested for this advice to be sent via a text message and an email to him.

[12] Immediately after the telephone call, the Commission sent Mr Bala a text message providing the Commission’s email address. Further, the Commission sent an email to Mr Bala, which stated:

“Following our conversation today, please find attached the Notice of Listing sent to you on 24 June 2019, requiring you to file submissions by Thursday, 27 June 2019.

If you require an extension you are required to request this in writing explaining why and when you require the extension until.”

[13] As Mr Bala did not respond to this correspondence, an email was sent to him on 8 July 2019 warning if he did not contact the Commission by noon on 9 July 2019, his matter would be listed for a non-compliance hearing.

[14] The matter was listed for a non-compliance hearing and a Notice of Listing was sent to Mr Bala’s nominated email and postal addresses on 9 July 2019. The Australia Post tracking ID indicates the Notice of Listing sent via express post was delivered at 1.30pm on 10 July 2019 to the postal address nominated by Mr Bala in his Form F2.

[15] The non-compliance hearing proceeded before Commissioner Bissett on 12 July 2019. Mr Bala could not be contacted. City of Melbourne made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Bala’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted City of Melbourne’s oral application.

[16] Following the non-compliance hearing, correspondence was sent to Mr Bala’s nominated email address advising him of City of Melbourne’s s.399A application. Mr Bala was directed to file submissions and other documentary material in respect of the s.399A application by no later than close of business on 19 July 2019. The correspondence also noted that if the Commission did not receive a response, Mr Bala’s application for relief from unfair dismissal would be dismissed.

[17] To date, Mr Bala has not filed any material with the Commission.

[18] 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.

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

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

[21] The power to dismiss an application if the non-compliance was unreasonable is discretionary. While his application was filed and he attended the conciliation, Mr Bala has failed to actively prosecute his case since 2 July 2019 and has been unresponsive to the various communication by the Commission. Mr Bala did not seek an extension to file and serve his material and has not further explained his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 12 July 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Bala’s application. This ends his unfair dismissal application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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