Wajeeh Haider v Rasier Pacific Pty Ltd
[2024] FWC 621
•8 MARCH 2024
| [2024] FWC 621 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wajeeh Haider
v
Rasier Pacific Pty Ltd
(U2023/13245)
| COMMISSIONER TRAN | MELBOURNE, 8 MARCH 2024 |
Application under s 399A – unreasonable failure to attend conferences – application granted
This decision concerns an application made by Rasier Pacific Pty Ltd (Uber) under s 399A of the Fair Work Act 2009 (the Act) to dismiss Mr Wajeeh Haider’s unfair dismissal application on the grounds that Mr Haider failed to attend conferences of the Fair Work Commission.
I grant that application under s 399A and dismiss Mr Haider’s unfair dismissal application. My reasons follow.
Background
On 30 December 2023, Mr Wajeeh Haider applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Act, alleging that ‘Rasier Pacific Pty Ltd (Uber)’ with the ABN 27 622 365 833 had terminated his employment.
Mr Haider says that his employment started on 30 September 2023 and that it ended on 27 December 2023. He says that Uber deactivated his account without any reason on 27 December 2023.
Raisier Pacific Pty Ltd responded to the application, but objected on the grounds that Mr Haider was not an employee and therefore could not be a person who has been dismissed within the meaning of s 385(a). Rasier Pacific asked that the application be dismissed under s 587 of the Act on the grounds that it had no reasonable prospects of success.
On the face of his application, Mr Haider may also not be a person protected from unfair dismissal in accordance with s 382 of the Act, in that he may not have completed the minimum period of employment under s 383 of the Act (being 6 months in the case of an employer that is not a small business employer).
A staff conciliation was scheduled for 15 February 2024. Mr Haider did not attend that conciliation and the staff conciliator was unable to contact Mr Haider. The Respondent did attend the conciliation.
The matter was then allocated to me. I listed the matter for a case management conference to be held on Thursday 29 February 2024. My chambers issued a notice of listing to the parties on 20 February 2024.
On 22 February 2024, my associate telephoned the contact number provided by Mr Haider in his application form. A person answered the telephone call but we were unable to confirm that the person we were speaking with was Mr Haider, and that person began yelling, passed the call to another person who was short with my associate, and so we ended the call.
Mr Haider did not attend the case management conference held on 29 February 2024 at 3:00pm. Shortly after the start time of the conference, my associate again telephoned the contact number on Mr Haider’s application form. Mr Haider did answer that call, confirming his identity and that he had received the Commission’s notice of listing. However, Mr Haider answered yes to all questions asked of him, then asked an irrelevant, personal question of my associate and ended the call shortly after.
Mr Haider’s application form indicated that he did not need an interpreter.
The Respondent also did not attend the case management conference on 29 February 2024 as the notice of listing had been sent to an email address that was no longer in use.
My chambers sent the following email to the parties following the case management conference:
“I write in relation to the above matter.
The Commissioner convened a case management conference this afternoon.
The Applicant did not attend.
The Respondent also did not attend, but the Commissioner notes this is due to the use of an old email of an employee no longer working with Uber. This has since been rectified.
The Applicant was contacted via phone but did not show an intention to participate nor provide a reason for not participating. We note that at the staff conciliation held on 15 February 2024 the Applicant also did not attend and does not appear to have provided reasons for not attending.
The Commissioner will list this matter for a further case management conference for 10:00am, 8 March 2024. The Applicant is directed to attend and provide his reasons for not attending today’s case management conference and the earlier staff conciliation conference.
We note that the Commission may, on application by the employer in accordance with s 399A, dismiss an application if the Commission is satisfied that the Applicant has unreasonably failed to attend a conference conducted by the Fair Work Commission.
Mr Haider, if you no longer wish to continue with your application you may inform us via reply email.”
On 6 March 2024, the Respondent filed an application under s 399A to dismiss the application. Mr Haider was copied into the email to the Commission enclosing the application to dismiss. The Respondent also requested that the case management conference be vacated and its application determined on the papers.
On 7 March 2024, my chambers sent the following email to the parties:
“I confirm the Commissioner has received the below application made in accordance with s 399A of the Act.
The Commissioner is not minded to vacate the case management conference listed for tomorrow and expects all parties to attend. The Respondent will be heard during the conference on its application under s 399A.
Mr Haider, by way of explanation the Respondent has applied to have your matter dismissed due to your failures to attend conferences convened by the Commission. During the conference tomorrow you have been directed to attend and provide reasons for your failure to attend previous conferences. In doing so you may respond to the application made by the Respondent. Should your reasons satisfy the Commissioner, this matter will be programmed for hearing tomorrow.”
Mr Haider did not attend the case management conference held on 8 March 2024 at 10:00am. The Respondent did attend and pressed its application under s 399A.
Consideration
Section 399A of the Act provides:
“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.”
Mr Haider did not attend the staff conciliation scheduled for 15 February 2024, and provided no explanation for his non-attendance at that conciliation. I note however that conciliation before a staff conciliator is a voluntary process.
Mr Haider has failed to attend 2 case management conferences before me, held on 29 February 2024 and 8 March 2024. He has provided no explanation for not attending these case management conferences. I am satisfied that his failures were unreasonable. I therefore grant the Respondent’s application under s 399A to dismiss Mr Haider’s unfair dismissal application dated 30 December 2023.
Order
Application U2023/13245 is dismissed.
COMMISSIONER
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