Toby Jarzynski v Sarina Russo Group

[2019] FWC 7298

[2019] FWC 7298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Toby Jarzynski
v
Sarina Russo Group
(U2019/8844)

DEPUTY PRESIDENT MANSINI MELBOURNE, 25 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] Mr Jarzynski (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined to dismiss the application due to the Applicant’s unreasonable failures to attend a hearing held by the Commission and comply with directions of the Commission in relation to the application. The reasons for this decision follow.

Context

[3] The application was filed on 11 August 2019.

[4] On 10 September 2019, the parties participated in a Commission facilitated conciliation conference however the matter was not resolved.

[5] Accordingly, the matter was listed for hearing and a program issued for the exchange of materials in advance (Directions). The Directions required the Applicant to file his material by no later than noon on 7 October 2019. No such material was received.

[6] The Commission attempted to contact the Applicant regarding his non-compliance with the Directions on three occasions, as follows:

a) at 2:45pm on 8 October 2019, by telephone to the Applicant’s nominated mobile telephone number. A voicemail message was left.

b) at 10:12am on 9 October 2019, by telephone to the Applicant’s nominated mobile telephone number. A voicemail message was left.

c) at 11:41am on 9 October 2019, by email to the Applicant’s nominated email address, which included a direction to advise the Commission by 4:00pm that day when the Applicant intended to file his submissions otherwise the matter was at risk of being listed for a Non-Compliance Hearing.

[7] On 9 October 2019, as the Applicant did not respond as directed, a Non-Compliance Hearing was listed for 11 October 2019. The Applicant was notified by email to his nominated email address, which attached a notice of listing. The notice of listing was also posted to the Applicant’s nominated postal address. The notice of listing advised the Applicant that he would be contacted on his nominated mobile phone number and that the Non-Compliance hearing could result in the dismissal of his application.

[8] At 9:00am on 11 October 2019, the Non-Compliance Hearing proceeded before Commissioner Wilson. The Applicant did not attend and was not able to be reached on his mobile phone number. The Respondent made an oral application that the matter be dismissed due to the Applicant’s failure to comply with directions of the Commission, pursuant to s.399A of the Act (Respondent’s Application). Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s Application.

[9] On 11 October 2019, following the Non-Compliance Hearing, the Applicant was advised of the Respondent’s Application by email to his nominated email address. The Applicant was directed to file any materials on which he sought to rely as to why the Commission should not dismiss his application by no later than 4.00 pm on 18 October 2019 and, if no response was received, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[10] As at the date of this decision, the Applicant has not filed any material with the Commission or responded to the Commission’s many attempts to contact him since the conciliation conference.

Statutory context

[11] 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 held by the Commission in relation to the application or failed to comply with a direction or order of the Commission relating to the application (s.399A(1)(a) and (b)).

[12] 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)).

[13] 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

[14] 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.

[15] Taking into account the views provided by the Respondent, the Applicant’s election not to provide any views and the Applicant’s failures to attend (or seek any adjournment of) the Non-Compliance Hearing, I consider it appropriate to determine the Respondent’s Application on the papers.

[16] The Applicant has not responded to numerous attempts made by the Commission to contact him regarding his application. He has not complied with directions of the Commission in relation to his application and not attended the Non-Compliance hearing held by the Commission in relation to the application. Further, the Applicant has provided no explanation to the Commission for his failures to comply or attend and has not sought any dispensation, amendments or adjournments. He has simply not communicated with the Commission or made any effort to prosecute his claim since the attempt at conciliation on 10 September 2019.

[17] In these circumstances, I am satisfied that the Applicant has unreasonably failed to attend a hearing held by the Commission and unreasonably failed to comply with directions of the Commission relating to his application. Accordingly, the application is dismissed pursuant to s.399A. An order 1 giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

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