Razzakh v Woolworths Limited [2016] FWC 3258 (7 June 2016) [2016] FWC 3258 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Mohammad Razzakh v Woolworths Limited T/A Woolworths Petrol (U2016/1072) DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 JUNE 2016 Application for relief from unfair dismissal. [1] On 10 March 2016, Mr Mohammad Razzakh made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 . Mr Razzakh’s employment had been terminated by Woolworths Petrol on 18 February 2016. [2] The matter was listed for conciliation on 5 April 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing. [3] On 29 April 2016, the Woolworths filed an objection to the application and sought the dismissal of Mr Razzakh’s application. Woolworths based their objection on the following grounds; Mr Razzakh was not contactable; he was unresponsive to the Commission’s communications; and he had not made any attempts to pursue his application. [4] Mr Razzakh was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on in support of his application by noon, on 23 May 2016. [5] On 3 May 2016, Mr Razzakh was sent correspondence informing him of Woolworth Petrol’s section 399A application. Mr Razzakh was directed to file submissions and other documentary material in respect of Woolworth Petrol’s application by close of business, on 18 May 2016. Mr Razzakh was advised that if he failed to comply with this direction, his application may be dismissed. [6] On the same day, Mr Razzakh emailed the Commission and advised that he was not in Sydney and he had not been able to respond to any of the Commission’s messages or attend any meetings. He said he had to go back to his home town due to financial problems. [7] Mr Razzakh spoke with the Commission on 11 May 2016 and confirmed that he was still out of the country. He was informed that if he wanted to pursue with his application, he needed to respond to the Commission’s letter dated 3 May 2016. Mr Razzakh responded to that letter the following day and advised that he was able to attend meetings and or discuss his case after 11 May 2016 – when he returned to Australia. [8] On 23 May 2016, Woolworths Petrol pressed their application to have Mr Razzakh’s claim dismissed. It said that it continued to be prejudiced by having to expend time and resources defending the application. It relied on the same grounds set out in its s.399A application and that he had not sought an extension of time to lodge this material. [9] In reviewing the circumstances of this matter, Commissioner Wilson caused correspondence to be sent to Mr Razzakh on 24 May 2016 which gave him a further opportunity to explain why his application should not be dismissed given his failure to comply with the Commission’s directions. Mr Razzakh was asked to provide his response to the Commission by close of business, 3 June 2016. He was also put on notice that failure to address this request may result in his application being dismissed. [10] Mr Razzakh did not comply with this direction and did not file any material with the Commission. [11] 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.” [12] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. [13] As Mr Razzakh did not file any additional material in opposition to the application to dismiss, I will determine the application on the papers. [14] Mr Razzakh provided a reasonable explanation for his initial failure to comply with directions, namely that he was out of the country. However, he returned to Australia on 11 May 2016 and he has not taken any steps to file material in support of his application or to contact the Commission. [15] 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 [16] 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 and 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 [17] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3 . [18] In summary, that decision said: ● the starting point of any consideration 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. [19] While not an exhaustive list of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application. [20] While I consider his failure to file material in support of his application once he returned to Australia as unreasonable, I am not prepared, at this time, to dismiss his application. I am not satisfied that Mr Razzakh has demonstrated an unwillingness to prosecute his claim. [21] I therefore direct Mr Razzakh to file and serve the following documents by noon on 17 June 2016: Applicant’s Outline of Argument, Applicant’s Statement of Evidence and an Applicant’s Document List (all available on the Commission’s website: https://www.fwc.gov.au/resolving-issues-disputes-and-dismissals/dismissal-termination-redundancy/preparing-hearings ). [22] If Mr Razzakh fails to file material in accordance with this direction or fails to make an application for an extension of time before the due date, then his application will be dismissed without further notice to him. DEPUTY PRESIDENT 1 S.399A of the Fair Work Act 2009 2 Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163] 3 PR 956665 Printed by authority of the Commonwealth Government Printer <Price code A, PR580659>