Zlatko Stevanovski v The Trustee for the Scott Family Trust

[2020] FWC 5324

[2020] FWC 5324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zlatko Stevanovski
v
The Trustee for the Scott Family Trust
(U2020/10175)

DEPUTY PRESIDENT MANSINI MELBOURNE, 6 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Mr Stevanovski (Applicant) has applied for an unfair dismissal remedy in relation to the dismissal of his employment with The Trustee for the Scott Family Trust (Respondent) 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 26 July 2020.

[4] On 24 August 2020, the parties participated in a Commission facilitated conciliation conference however the matter was not resolved.

[5] The file was then allocated to me. I convened a mention on 4 September 2020 which was attended by the Applicant, the Applicant’s support person and the Respondent. The program for the filing of materials and the hearing date were discussed.

[6] On 7 September 2020, Directions were issued as discussed in the Mention. The Directions required the Applicant to file his material by no later than 4:00pm on 21 September 2020. No such material was received.

[7] On 22 September 2020, my chambers issued correspondence to the Applicant’s nominated email address, addressing his failure to file materials in accordance with the Directions on 7 September 2020. It included the following:

“[…]

If you wish to proceed with your application, then you will need to request an amendment to the directions to extend the time for filing and explain the reasons for your non-compliance to Deputy President Mansini.

Accordingly, the Commission directs that:

1. By no later than 4pm on Friday 25 September 2020, the Applicant is directed to advise the Commission:

•  Whether the Applicant wishes to proceed with this matter; and

•  If so, the reason(s) for their non-compliance with the Commission’s Directions of 7 September 2020 with evidence (if any) in support of those reason(s).

2. By 4pm on Monday 28 September 2020 the Respondent may make any application or submissions it wishes to make in response.

What if you do not wish to proceed?

If you do not wish to proceed with the claim, then you can reply to confirm this. The file will then be closed and no further action required of you. (sic.)

Important note

If you do not comply with the Commission’s directions, the matter may be dismissed pursuant to s.399A of the Fair Work Act.

You may contact me on the below number if you have any questions.”

[8] At 10:20am on 25 September 2020, the Applicant emailed the Commission in response (the Respondent was copied). The Applicant requested an amendment to the directions to extend the time for filing his material, on compassionate grounds related to a death in the family.

[9] The Applicant’s request for an extension of the time for filing was granted and, on 28 September 2020, Amended Directions were issued to the parties. The Amended Directions required the Applicant to file his material by no later than 4:00pm on 1 October 2020. No such material was received. The Amended Directions notified parties that failure to comply may result in the Commission proceeding to determine the matter having regard to the material before it. At 4:26pm on 1 October 2020, the Respondent wrote to the Commission regarding the Applicant’s non-compliance with the Amended Directions.

[10] On 2 October 2020, the matter was listed for Non-Compliance Hearing on 6 October 2020. The Applicant was notified via a notice of listing sent to his nominated email address. The notice of listing directed the Applicant to provide an appropriate telephone number he may be contacted on for the Non-Compliance Hearing. The notice of listing also included the following note:

“Please be aware that, if you do not attend at the listed time and date, the Commission will proceed in your absence without hearing further from you and the matter may be dismissed.”

[11] On two separate occasions on 5 October 2020, my chambers attempted to contact the Applicant on his nominated mobile number. The Applicant could not be reached on either occasion and voicemail messages were left requesting him to return the phone call. No communication was received in response to those attempts.

[12] At 9:00am on 6 October 2020, the Non-Compliance Hearing proceeded before me. The Applicant did not attend and was not able to be reached on his nominated mobile phone number. As at that time, the Applicant had not filed any material with the Commission in accordance with the Amended Directions, had not requested a further extension of the time for filing or adjournment of the Non-Compliance Hearing and had not responded to the Commission’s numerous attempts to contact him regarding his non-compliance or communicated with the Commission at all since 25 September 2020.

Statutory Context

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

[14] 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)).

[15] 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

[16] The Respondent, being the employer party to the application, made oral application for the Commission to exercise its discretion to dismiss the application pursuant to s 399A during the Non-Compliance Hearing on 6 October 2020.

[17] I accepted this application and determined to dismiss the unfair dismissal application pursuant to s 399A with written reasons to follow.

[18] I am satisfied that the Applicant was aware of the need to comply with directions of the Commission and understood the process for requesting an extension of the time for filing. The Applicant was on notice of the consequences of failure to comply with the Commission’s directions and failure to attend Commission proceedings. Further, since 25 September 2020, the Applicant has chosen not to communicate with the Commission or respond to its numerous attempts to reach him by telephone and email.

[19] 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.

DEPUTY PRESIDENT

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