Wei Wen Fan v Daoud Building Group Pty Ltd T/A Master Granny Flats

[2015] FWC 8224

[2015] FWC 8224

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wei Wen Fan
v
Daoud Building Group Pty Ltd T/A Master Granny Flats
(U2015/10899)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 26 November 2015 I heard Daoud Building Group Pty Ltd’s application to have Mr Wei Wen Fan application for an unfair dismissal remedy dismissed because Mr Fan had failed to comply with directions of the Commission and had failed to attend a noncompliance hearing. At the conclusion of the telephone hearing I dismissed Daoud’s application. These are my reasons.

[2] On 16 September 2015 directions were issued to Mr Fan to file material in support of his application. That material was due on 6 October 2015. Mr Fan did not comply with the direction and on 7 October 2015 requested an extension to file his material. Mr Fan’s application for an extension was approved and he was given until 13 October 2015 to file material. Mr Fan did not comply with this direction and did not apply for a further extension to file material.

[3] The matter was referred to conciliation on 12 October 2015, but the matter did not resolve. The parties asked to be able to continue to see if they could resolve the matter until 19 October 2015. On 20 October 2015, Mr Fan advised the matter was not resolved and that he was overseas and provided a contact number “if he was in reception.”

[4] Daoud submitted that it attempted unsuccessfully to contact Mr Fan before 19 October 2015. After receiving an email from Mr Fan on 20 October 2015 it unsuccessfully attempted to contact Mr Fan on the number he provided.

[5] On 21 October 2015, the parties were advised the matter was referred to a noncompliance hearing by telephone, on 23 October 2015. Mr Fan did not attend the noncompliance hearing. Daoud foreshadowed a s.399A application. At the hearing new directions were made which required Mr Fan to provide his material by 11 November 2015.

[6] On 27 October 2015 Daoud applied under s.399A for Mr Fan’s application to be dismissed because he had not complied with the directions and had failed to attend the noncompliance hearing.
[7] On the same day Mr Fan advised the Commission that he had returned from overseas. He was provided with a copy of the s.399A application, but he was not issued with directions advising him when he needed to respond. Daoud had included in its covering letter the advice I had given at the noncompliance hearing that Mr Fan would be given 10 days to reply.

[8] On 6 November 2015, in response to Daoud’s application Mr Fan advised that he had to make a trip to the Philippines urgently and he was in a remote area and had limited internet access. Mr Fan had left Australia on 18 October.

[9] On 11 November 2015, Mr Fan filed material in support of his substantive application.

[10] At the hearing I granted permission for Daoud to be represented. No person from Daoud appeared at the telephone hearing and no explanation was provided for their absences. Despite Mr Fan opposing permission being granted I determined to grant permission because in the circumstances, particularly the fact that the matter was listed for hearing in December. I formed the view that Daoud would not be able to represent itself at this hearing effectively and it would be unfair not to permit it to be represented.

[11] Daoud relied on the matters set out above to support its application. Further it submitted that Mr Fan’s case was without merit and therefore it should be dismissed. Mr Fan disputed this.

Consideration

[12] On application by an employer the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[13] The Explanatory Memorandum said that the intention of this provision was “…to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[14] The role of case management was discussed by the Full Bench in A Ghalloub v Aon Risk Services Australia Limited. 3

In summary that decision said:

● the starting point of any consideration of an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
● the circumstances of each case is central;
● a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[15] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench when deciding whether to exercise my discretion to dismiss the application.

[16] I do not consider Mr Fan’s non-attendance at the noncompliance hearing was unreasonable, as I find that he was unaware that it was occurring and that was due to poor internet and phone access.

[17] Mr Fan provided no explanation as to why he did not comply with the directions prior to going overseas. While I accept that his internet and phone access were limited when he was overseas, his obligation to comply arose prior to him going overseas.

[18] Mr Fan had already been granted an extension to file his material. Despite his protestation he knew what he needed to do to get an extension. He simply ignored his obligations to the Commission and Daoud. That conduct was unreasonable.

[19] However, the decision to dismiss is a discretionary decision. Mr Fan is unrepresented in this matter. Further, he has now filed his material and the matter can proceed to hearing. I do not consider the merits of the matter weigh against the exercise of my discretion in Mr Fan’s favour. There is a real dispute between the parties about Mr Fan’s conduct. I am not able to make any assessment of that dispute at this time. Whilst, this case is borderline I do not consider he should be prevented from having his case heard and determined. Therefore Daoud’s s.399A application is dismissed.

DEPUTY PRESIDENT

Appearances:

W Fan on his own behalf.

A Meadth for the Respondent.

Hearing details:

2015.

Perth.

November 26.

 1 S.399A Fair Work Act 2009.

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161- 163] .

 3   PR956665.

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