Thonh Ly v Roo & Oz Sheetmetal Pty Ltd

[2018] FWC 7400

[2018] FWC 7400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Thonh Ly

v

Roo & Oz Sheetmetal Pty Ltd

(U2018/9818)

Deputy President Clancy MELBOURNE, 5 DECEMBER 2018

Application for an unfair dismissal remedy.

1. On 21 September 2018, Mr Thonh Ly 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). Mr Ly said his employment had been terminated by Roo & Oz Sheetmetal Pty Ltd (ROS) on 31 August 2018. The application indicated that Mr Ly was represented by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

1. A Notice of Listing was sent to the parties on 1 October 2018 scheduling the matter for conciliation.

1. The conciliation took place on 25 October 2018 and was attended by Mr Ly and his representative from AMWU. The matter did not settle and was subsequently referred for arbitration.

1. On 1 November 2018, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 14-16 January 2019. Directions were also issued, which required Mr Ly to file his material by no later than noon on 19 November 2018 and ROS to file its reply material by no later than noon on 10 December 2018.

1. As no material was received by noon on 19 November 2018, the Commission telephoned AMWU that afternoon to enquire about Mr Ly’s material. AMWU advised the Commission that it had lost contact with Mr Ly and was therefore unable to prepare the material without his instructions. It further advised that it would be ceasing to act for Mr Ly.

1. Following receipt of AMWU’s advice, the Commission attempted to telephone Mr Ly in relation to his overdue material. No contact was made and a voicemail was left. Shortly after this, email correspondence was sent to Mr Ly’s nominated email address seeking advice about when he intended to file his material.

1. On 20 November 2018, a Form F54 – Notice of representative ceasing to act was received from AMWU. Later the same day, a further attempt to telephone Mr Ly was made by the Commission. Again, he could not be reached and a voicemail message was left. The Commission then sent further email correspondence to Mr Ly’s nominated email address warning that if he did not contact the Commission to advise when he intended on filing his material by 2:00pm the next day, the matter would be listed for a non-compliance hearing.

1. On 21 November 2018, the Commission attempted to telephone Mr Ly in relation to his outstanding material. Again, no contact was made and a voicemail message was left to advise that the matter would be listed for a non-compliance hearing if the Commission did not hear back from him.

1. As no response was received from Mr Ly, a Notice of Listing scheduling the non-compliance hearing was sent to the parties on the afternoon of 21 November 2018.

1. A further attempt to telephone Mr Ly was made by the Commission on 22 November 2018, which was unsuccessful and a voicemail message was left.

1. The non-compliance hearing proceeded before me on 23 November 2018. Mr Ly could not be contacted. ROS made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Ly’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted ROS’s oral application.

1. Following the non-compliance hearing, correspondence was sent to Mr Ly’s nominated email and postal addresses advising him of ROS’s s.399A application. The postal correspondence was sent via express post. Mr Ly was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 30 November 2018. The correspondence also noted that if the Commission did not receive a response, Mr Ly’s application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Mr Ly’s nominated postal address on 27 November 2018.

1. To date, Mr Ly has not filed 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 Ly 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 Ly has failed to respond to the numerous attempts made by the Commission to contact him since receiving notice that AMWU was no longer acting for him on 19 November 2018. Apart from initially filing his application and attending the conciliation, Mr Ly has otherwise not exhibited a willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with the Commission’s directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Ly’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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