Vincent Li v Food Health Australia Pty Ltd T/A Manly Eat Well Chinese Restaurant
[2020] FWC 639
•6 FEBRUARY 2020
| [2020] FWC 639 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vincent Li
v
Food Health Australia Pty Ltd T/A Manly Eat Well Chinese Restaurant
(U2019/12656)
COMMISSIONER MCKENNA | SYDNEY, 6 FEBRUARY 2020 |
Application for an unfair dismissal remedy.
[1] In proceedings on 6 February 2020, in which the applicant did not appear, I acceded to an application to dismiss this application for an unfair dismissal remedy. The following are the reasons for that decision.
[2] On 14 November 2019, Vincent Li (“the applicant”) made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which he sought an unfair dismissal remedy concerning his dismissal by Food Health Australia Pty Ltd trading as Manly Eat Well Chinese Restaurant (“the respondent”).
[3] The application has had a chequered procedural history, which I will outline in abbreviated form. Based on the information provided in the applicant’s Form F2 (Application for an unfair dismissal remedy) and the respondent’s Form F3 (Employer response to unfair dismissal remedy), it appeared there was a minimum employment period issue, albeit that issue was not identified as a jurisdictional objection by the respondent itself in its Form F3. In any event, given what appeared to be common ground in the Form F2 and Form F3 concerning the applicant’s length of employment with the respondent, the Commission’s usual preliminary processes were engaged - relevantly involving corresponding with the applicant in relation to the minimum employment period. Following the filing by the applicant of certain submissions and supporting materials, the matter was then allocated to me to determine (a) the minimum employment period issue; and, (b) depending on the determination of the minimum employment period issue, the merits arbitration.
[4] There was no appearance by or on behalf of the applicant when the matter was listed on 9 January 2020. The applicant was informed in writing that the respondent’s representative had that day made a dismissal application pursuant to s.399A of the Act. While I did not dismiss the application that day, the applicant was informed of the provisions of s.399A and was also informed that should he fail to attend the then next-listed proceeding, the application may be dismissed without further notice to him. The applicant did attend the then next-listed proceeding. In consequence, the application was not dismissed on 10 January 2020. Relevantly, after a number of further developments, I concluded, in a decision issued on 17 January 2020, that the applicant had met the minimum employment period: Vincent Li v Food Health Australia Pty Ltd T/A Manly Eat Well Chinese Restaurant[2020] FWC 260.
[5] Given the outcome concerning the determination of the minimum employment period issue, blended jurisdiction and merits directions were then issued on 20 January 2020 in anticipation of a Jurisdiction (Genuine Redundancy) and Arbitration Conference/Hearing scheduled for 27 February 2020.
[6] Among other proceedings that have been scheduled, I determined to list the matter today for a conference and/or directions telephone proceeding to see if the parties may be able to reach a settlement concerning the application – more particularly given matters including the seemingly modest basis the applicant had proposed to settle the application in earlier proceedings and the fact the respondent’s representative, Ms L Yang, had also indicated in earlier proceedings that she would be seeking legal advice and/or legal representation. Absent any settlement in the proceedings today, it also would have been necessary to deal with any application to amend the directions in circumstances where one round of the respondent’s materials were otherwise due to have been filed and served earlier this week.
[7] Given the past failure of the applicant to appear in proceedings (albeit it may be noted that the respondent’s representative similarly has had to be contacted by my Associate concerning participation in proceedings – including being dialled-in by telephone by my Associate to a proceeding that otherwise was listed as an in-person proceeding), I instructed my Associate to telephone the applicant (and the respondent) yesterday specifically to draw attention to the Notice of Listing concerning the proceeding that was scheduled for 3.00pm today. I am informed that my Associate’s telephone calls to the applicant in such respects went in one respect to the voicemail facility on the applicant’s telephone number. It should not, of course, be necessary for staff of the Commission to make such follow-up calls when a Notice of Listing has been sent successfully. Nonetheless, I thought it prudent to give such instructions given the past history of matters and, particularly, where interpreter services had been booked (for the benefit of the respondent’s representative); and costs to the Commission would be incurred regardless of attendance by the applicant or the respondent, or either of them.
[8] There was no appearance by or on behalf of the applicant in the telephone proceeding that was listed for 3.00pm today. Moreover, my Associate’s further attempt to contact the applicant so as to have him attend the telephone proceeding was unsuccessful; the telephone call to the applicant went to voicemail and he did not later join in the proceeding that then proceeded in his absence. Among other submissions, the respondent’s representative apologised for not having filed and served the materials that were due earlier this week. The respondent’s representative otherwise renewed the s.399A application.
[9] Following discussion in the proceeding (through an interpreter), I announced to the respondent’s representative that I acceded to her application; at approximately 3.23pm, the proceedings were thereby concluded.
[10] 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.”
[11] The applicant was aware, from correspondence sent to him in connection with an earlier failure to attend a conference conducted by the Commission, that an application had been made on 9 January 2020 that the application should be dismissed pursuant to s.399A of the Act concerning non-attendance on that particular occasion. While it is to be acknowledged the applicant has subsequently attended proceedings in the period following 9 January 2020, he has again failed to attend a scheduled conference before the Commission. The respondent made or renewed the s.399A dismissal application today; and I acceded to that application in the proceedings.
[12] I was satisfied that the applicant had unreasonably failed to attend a conference conducted by the Commission in relation to the application in circumstances where: (a) the Notice of Listing was successfully delivered by email to the applicant (there was no delivery failure message); (b) my Associate left a voicemail message yesterday for the applicant specifically drawing attention to the Notice of Listing (and separately, the applicant did not make any return call to my Associate expressing, for instance, any potential difficulty); (c) there was no formal or informal application by the applicant seeking, for example, to adjourn the proceeding; (d) there was no appearance by or on behalf of the applicant at the scheduled listing time; and (e) my Associate’s attempt to telephone the applicant shortly after the scheduled listing time went to voicemail and there was no appearance by him or on his behalf in the ensuing 20 minutes or so following the voicemail message. Shortly stated, there was no attendance by the applicant in today’s proceeding notwithstanding the preceding matters – and in circumstances where he had earlier been alerted to the provisions of s.399A of the Act as it concerns the potential consequences of dismissal of an application where there is non-attendance.
[13] As noted earlier, the proceedings concluded at approximately 3.23pm. It may be noted, as a postscript, that at 3.46pm the applicant sent an email which read (as written):
“Dear commissioner Mckenna
Sorry I missed the conference call my phone ran out of batteries whilst I was on the way home. I will still have my documents submitted by the 10th of February
Yours sincerely
Vincent Li”
[14] By the time the applicant’s email was received, the proceedings in relation to the application were concluded given I had already earlier acceded to the s.399A application.
[15] Conformably with my decision in proceedings, an order dismissing the application issues in conjunction with these reasons.
COMMISSIONER
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