Yu Liu v Adecco

[2019] FWC 3144

[2019] FWC 3144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Yu Liu
v
Adecco
(U2019/948)

COMMISSIONER RIORDAN SYDNEY, 8 MAY 2019

Application for an unfair dismissal remedy.

[1] Mr Yu Liu (the Applicant) was employed by Adecco Australia (the Respondent) on 3 July 2018. The Applicant was terminated on 18 January 2019 whilst working on a casual assignment at Dnata Catering.

[2] The Applicant lodged an unfair dismissal application with the Fair Work Commission (the Commission) on 30 January 2019 in accordance with section 394 of the Fair Work Act, 2009 (the Act).

[3] The application was listed for Conference/Directions by the Commission, as currently constituted. This Conference was conducted by telephone on 26 March 2019.

[4] At the conclusion of the teleconference, the Commission advised the parties verbally of the proposed Directions. These Directions were subsequently sent to the parties by email to their preferred email accounts. The Directions required the Applicant to file an outline of submissions, witness statements and any other documentary material upon which he wished to rely upon in support of his application by 4pm on 16 April 2019, some 3 weeks after the teleconference. The Applicant failed to file any submissions or documentation.

[5] On 18 April 2019, the Respondent sent correspondence to the Commission in the following terms:

“Good afternoon,

I am writing in relation to the above mentioned matter.

In accordance with the directions provided by Commissioner Riordan the Applicant was required to serve on us an outline of his submissions and supporting evidence, by 4.00pm 16^th April 2019.

To date we are yet to receive the required information from the Applicant, and am writing to confirm whether Chambers has received this required information.

In the event that the Applicant has failed to comply with this requirement, we consider that the Applicant has failed to prosecute their case appropriately. Therefore, with respect, we request that in accordance with Section 399A, Sub-section (1)(b) of the Fair Work Act the Applicants claim is dismissed as he has unreasonably ‘failed to comply with a direction or order of the FWC relating to the application’.

At present we are unable to commence with preparation of our Outline of Submissions and trust that this delay will be taken into consideration by way of an extension should this matter continue.

If you require any further information, or wish to discuss further please let me know.

Kind regards,

Tariq Nasri

Industrial Relations Manager

Adecco Group” 1

(my emphasis)

[6] The Commission sought a response from the Applicant to the Respondent’s application for the Commission to dismiss the application in accordance with section 399A of the Act.

[7] The Applicant responded some 2 hours later in the following terms:

“Hi commissioner

I am very sorry, I forgot the date, i apologize for this thing happened 

Can I file the submission and get submitted by email?

Thanks” 2

[8] The Applicant went ahead, on his own volition and filed a two point, half page submission on 23 April 2019. I note that I was on annual leave from 19 April until 6 May 2019.

Legislation

[9] Section 399A of the Act provides the following:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.”

Consideration

[10] The Applicant’s response that he simply “forgot” may be brutally honest but is unacceptable. In accordance with the Directions, the Applicant had three weeks to make a submission. I doubt that the brief submission that was lodged on 23 April 2019 would have taken any longer than 30 minutes to complete.

[11] Failure to comply with the Directions of the Commission cannot be condoned. I note that the printed Directions of Commission that were sent to the parties on 26 March 2019 contained the following comments:

“Any request for an adjournment of the Arbitration Hearing or an extension of time to file material must be made prior to the hearing/compliance date and be in writing and based on substantial grounds.”

[12] Whilst the Applicant’s submissions that were lodged on 23 April 2019 have not been taken into account when reaching my decision, I note that the Applicant’s argument in this outline does not identify a compelling argument in support of his application.

Conclusion

[13] I find that the Applicant has failed to comply with the Directions of the Commission. The reason provided by the Applicant for his noncompliance is inadequate, insubstantial and unsatisfactory. It is not plausible that an Applicant who is seeking reinstatement would simply “forget” about his obligations in relation to his application.

[14] The Applicant’s unfair dismissal application is dismissed.

[15] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR708063>

 1   Email correspondence from the Respondent dated 18 April 2019

 2   Email reply from the Applicant dated