FWC calls 'non-responsive, non-compliant' conduct 'selfish abuse of process'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who applied for an unfair dismissal application then traveled overseas without any notice.
Meanwhile, the employer argued that the worker was not dismissed as he was not an employee and claimed that the unfair dismissal case should be dismissed.
Unnotified travel overseas
On 17 April 2023, the worker filed an application to the Commission to deal with an unfair dismissal dispute concerning an alleged dismissal by his company.
The matter was then listed for conciliation before a Commission staff member on 15 June 2023 and the Commission attempted to telephone the worker four times to start the conciliation, but the worker did not answer.
While the employer was in attendance, the conciliation did not take place since the worker was unable to be contacted on the telephone number he provided.
“The [worker] did not attempt to contact the conciliator prior to or following the listed conciliation,” the FWC stated.
When the matter was subsequently allocated to the Commission, it listed the matter for a directions hearing on 28 June 2023 and sent a notice of listing to which the worker did not again respond to.
On the directions hearing on 28 June 2023, three representatives of the employer appeared. Yet, no appearance was made by the worker or any person on his behalf.
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Consequently, the Commission issued further directions and listed the matter for a non-compliance hearing wherein the FWC will consider whether the application should be dismissed under the Fair Work Act.
The employer argued that the application should be dismissed on the ground of alleged unresponsiveness and non-compliance with directions.
It further noted that the application had no reasonable prospects of success given the jurisdictional issues raised by the company.
On 3 July 2023, when the non-compliance hearing was scheduled, the employer was in attendance and the worker joined the hearing at 9:39 am - nine minutes late from the scheduled 9:30 am hearing.
During the hearing, the worker said that he filed his unfair dismissal application before traveling to Pakistan.
The worker further argued that: a) Whilst in Pakistan he has not engaged in international roaming on his mobile telephone despite having notified the Commission of that contact number b) Whilst in Pakistan he has had access to the email account that he had notified the Commission in his application but because he was on holiday and wanted to relax he did not wish to engage in correspondence concerning his legal claim.
HRD previously reported on the case of a student-worker who said his employer unjustly and unfairly changed their roster when he was overseas and on leave.
When the parties couldn’t resolve their roster dispute, the worker claimed he was dismissed, but the employer said that he resigned on his own.
FWC’s decision
In deciding the case, the Commission noted that the worker, until appearing late at the 3 July 2023 non-compliance hearing, had been non-responsive to directions and obligations to attend hearings.
It further noted that the explanations provided by the worker were unconvincing and that his non-compliance and non-responsiveness had caused both the employer and the Commission expenses.
“This decision serves as a clear statement on the Commission’s part that filing an application then travelling overseas for extended holidays and without notice and expecting the Commission and the party being sued to hold themselves in abeyance until it suits the applicant traveller is wholly unacceptable, a selfish abuse of process and to be deplored,” the FWC stated.
However, despite such conduct by the worker, the Commission said that the worker’s application should not be summarily dismissed as the worker had not had a proper chance to put evidence in response.
A further directions hearing will also take place to tackle the jurisdictional issues raised by the employer, specifically that the worker was not dismissed because he was not in an employment relationship with the company.