Susantha Abeysinghe v Tonkin & Taylor Group Holdings Pty Ltd

[2022] FWC 185

[2022] FWC 185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Susantha Abeysinghe
v

Tonkin & Taylor Group Holdings Pty Ltd

(U2021/8898)

DEPUTY PRESIDENT MANSINI MELBOURNE, 31 JANUARY 2022

Application for an unfair dismissal remedy.

1. Mr Abeysinghe (Applicant) has applied for an unfair dismissal remedy in relation to the cessation of employment with Tonkin & Taylor Group Holdings Pty Ltd (Respondent) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

1. I have determined to dismiss the application. The reasons for this decision follow.

Context

1. The application was filed on 6 October 2021.

1. The Commission’s staff endeavoured to facilitate an initial attempt at conciliation, with some difficulty, as follows:

·   An initial attempt at conciliation took place before a staff conciliator on 4 November 2021, but did not conclude when the Applicant disconnected from the conciliation and was unable to be reconnected by the Commission staff conciliator or the Applicant’s then representative.

·   A second conciliation conference was listed to take place before a staff conciliator on 22 November 2021. On the day of the conciliation, the Applicant’s then representative telephoned the Commission to advise that the Applicant could not attend on medical grounds. Accordingly the listing was cancelled.

·   On 30 November 2021, the Applicant’s then representative telephoned the Commission to advise they were no longer representing the Applicant because the Applicant was not able to be contacted and was not responding to their attempts at communication. A notice of representative ceasing to act was subsequently filed.

·   A further attempt at conciliation was listed to take place before a staff conciliator on 10 December 2021. The Commission’s records reflect that, on 1 December 2021, a Commission staff member telephoned the Applicant to request attendance details for the conciliation but the Applicant “hung up” the phone and was not able to be reached again despite subsequent attempts. The Commission’s records also indicate that then, at the commencement of the conciliation on 10 December 2021, the Applicant was able to be reached initially but disconnected the call shortly afterwards and the conciliation was unable to proceed.

1. The file was then allocated to me. On 23 December 2021, I listed the matter for hearing and issued written directions to the parties (at their nominated email addresses for service) requiring materials to be filed in advance (Commission’s Directions). The Commission’s Directions included the following important note:

Important note: Failure to comply with these Directions and/or attend the Hearing may result in the application being dismissed or determined on whatever materials are before the Commission without hearing further from you.

1. Also on 24 January 2022, an SMS was sent to the parties’ nominated telephone numbers, as follows:

The Fair Work Commission has sent correspondence U2021/8898 to your email address. Please open and read.

Important note: Failure to comply with the Directions and/or attend the Hearing may result in the application being dismissed or determined on whatever materials are before the Commission without hearing further from you.

If you have any questions regarding this matter please call 03 8656 4537.

DO NOT REPLY BY SMS

1. A notice of listing, instructions on attending an online hearing via MS Teams, additional resources and sources to assist the parties in their preparation for the hearing were also provided.

1. By 4.00pm on 14 January 2022, the Applicant had not filed any materials pursuant to the Commission’s Directions. The Commission’s records reflect that the Applicant did not request an adjournment or any dispensation or otherwise attempt to communicate with the Commission since the Commission’s Directions were issued.

1. On 17 January 2022, correspondence was sent to the Applicant’s nominated email address regarding the non-compliance with the Commission’s Directions. That correspondence included an opportunity for the Applicant to address the Commission about the reasons for the Applicant’s non-compliance (Commission’s Further Directions). The Commission’s Further Directions included a further reminder of the consequences of non-compliance including that the application may be dismissed.

1. On 20 January 2022, the Respondent filed and served a s.399A application to dismiss the Applicant’s unfair dismissal claim.

1. On 21 January 2022, my chambers issued the following correspondence to the Applicant’s nominated email address:

I refer to your application for unfair dismissal application which was filed with the Commission on 6 October 2021.

On 23 December 2021, the Commission wrote to you at your nominated email address and attached Directions. You were required to comply by 4pm on 14 January 2022.

On 17 January 2022, when you did not comply with the Directions or request an extension of the time in which to respond, you were afforded a further opportunity to explain your non-compliance and request an extension of the program. At the time of writing, the Commission has not received a telephone call or any other communication from you.

The Respondent has now filed an application requesting that your application be dismissed pursuant to s.399A (attached again for your reference).

What do you need to do now?

If you have decided not to continue with your application, you can let us know by reply email or a telephone call to [phone]. This will end your case.

If you wish to continue, then the Commission will need to determine the Respondent’s application to dismiss your claim. In that case, you are required to respond to the Commission by no later than 4pm on Tuesday, 25 January 2022 in which you must:

·Provide evidence and submissions you wish to file in response to the Respondent’s application to dismiss your claim; and

·File evidence and submissions in support of your claim and pursuant to the Commission’s directions of 23 December 2021, or otherwise evidence of why an extension of time for filing this material should be granted.

If we do not hear from you by 4pm on Tuesday, 25 January 2022, your application will be dismissed pursuant to s.587 and/or s.399A of the Fair Work Act 2009 (Cth).

Where can I get more information and help?

For further information regarding the process please see the below links to the Fair Work Commission website:

For further information regarding how to prepare documents for Hearing please see the below link to the Fair Work Commission website:
Preparing for hearings and conferences | Unfair dismissals benchbook (fwc.gov.au)

The following contacts may assist if you are seeking legal assistance:

·Job Watch

·1800 331 617

· Institute of Victoria

·[phone]

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An SMS was also sent to the Applicant’s nominated telephone number, alerting the Applicant to the Commission’s correspondence of 21 January 2022 and reiterating the consequences of non-compliance.

1. As at the date of this decision, there has been no response to any of the Commission’s attempts to contact the Applicant since 23 December 2021.

Statutory Context

1. An unfair dismissal application made under s.394 may be dismissed if the Commission is satisfied that the applicant has unreasonably failed to attend a hearing or failed to comply with a direction or order of the Commission relating to the application (s.399A(1)(a) and (b)).

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary and may only be exercised on application by the employer (s.399A(2)).

1. The Commission is not required to hold a hearing except as provided by the Act (s.593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s.399).

Consideration and conclusion

1. The Respondent, being the employer party to the application, has applied for the Commission to exercise its discretion to dismiss the application pursuant to s.399A.

1. Taking into account the views provided by the Respondent and the Applicant’s election not to provide any views on the matter, I consider it appropriate to determine the Respondent’s s.399A application on the papers.

1. The context summarised above reflects a history of non-compliance on the part of the Applicant. I am satisfied that the Applicant was notified of the Commission’s Directions and the Commission’s Further Directions and the consequences of non-compliance. The Applicant did not avail of the opportunities to file materials in support of the claim or in response to the Respondent’s s.399A application and did not seek any dispensation or amendments to the programs. Indeed the Applicant has not corresponded with the Commission at all despite numerous attempts made to communicate since 23 December 2021.

1. In these circumstances, I am satisfied that the Applicant has unreasonably failed to comply with directions of the Commission relating to the application. Accordingly, the application is dismissed pursuant to s.399A.

DEPUTY PRESIDENT

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