Fair Work Act 2009
s.394—Unfair dismissal

Edward Grzybowski
v
Julalikari Council Aboriginal Corporation
(U2014/12301)

Application for relief from unfair dismissal.

[1] On 8 September 2014, Edward Grzybowski (“the applicant”) lodged an application, made pursuant to s.394 of the Fair Work Act 2009 (“the Act”), for an unfair dismissal remedy concerning the termination of his employment with the Julalikari Council Aboriginal Corporation (“the respondent”). From the materials that have been lodged by the applicant and the respondent’s agent, the circumstances of the termination were in dispute, with the respondent, among other matters, relevantly raising a jurisdictional objection to the application on the basis there was no termination of the applicant’s employment at the initiative of the respondent.

[2] Following the allocation of the file to me, the application was listed for an initial telephone proceeding on 1 October 2014 (the parties are based in the Northern Territory) - with a view to conducting a conference with the parties to explore whether there may be any prospect for a settlement of the matter prior to the issuing of any directions in connection with the determination of the respondent’s jurisdictional objection.

[3] Although there was an appearance for the respondent in that proceeding on 1 October 2014, there was no appearance by or on behalf of the applicant. Moreover, there was no adjournment application from the applicant or any other communication to the Commission prior to the listing concerning any difficulty that may have precluded the applicant’s participation in the proceeding on 1 October 2014.

[4] In the circumstances of the unexplained non-appearance by the applicant on 1 October 2014, I determined to schedule a further telephone proceeding on 9 October 2014 and to cause inquiries to be made concerning the non-appearance.

[5] File notes record that, consequent upon the applicant’s non-appearance in the proceeding on 1 October 2014, my Associate subsequently had a telephone conversation with the applicant. Among other matters, the file notes record that discussion ensued concerning the attempts that had been made earlier that day to dial-in the applicant on his relevant telephone numbers for the purpose of participation in the proceeding. The file notes record that the applicant confirmed all his contact details in the application form as being correct, but, the applicant advised, he had not checked his emails for several weeks. The applicant was informed the matter had been given a further listing, the details of which would be forwarded to him by email and by (express) post; and the applicant confirmed to my Associate he would check his emails for the further Notice of Listing. The applicant was also advised to check his postal deliveries as well for the mailed copy of the Notice of Listing.

[6] On 1 October 2014, the respondent’s representative lodged with the Commission and served on the applicant certain correspondence which, other matters, referred to s.399A of the Act.

[7] On 2 October 2014, a Notice of Listing was issued concerning a further listing by telephone on 9 October 2014. That Notice of Listing was forwarded to the applicant’s email address and also to his residential address.

[8] File notes record that, on the morning of 9 October 2014, my Associate made two telephone calls to the applicant and left messages for him. I understand that the effect of those messages was to reconfirm, in circumstances where the applicant had not appeared in the earlier proceeding on 1 October 2014, that the further telephone proceeding was scheduled for later that afternoon. The applicant did not return the telephone calls made to him by my Associate.

[9] There was no appearance by or on behalf of the applicant on a second occasion when the matter was listed for a telephone proceeding before the Commission on the afternoon of 9 October 2014.

[10] Having considered the submissions of the respondent’s representative and having otherwise reviewed the file record for myself, I determined, relying on either the application by the respondent’s representative pursuant to s.399A or on my own initiative pursuant to s.587(3)(b) of the Act, or both, to dismiss the application.

[11] A formal order confirming the dismissal on 9 October 2014 of the applicant’s application for an unfair dismissal remedy has been issued in conjunction with these reasons.

COMMISSIONER

Appearances:

No appearance by or on behalf of the applicant.

L Matarazzo for the respondent.

Hearing details:

2014.

Sydney;

October, 1, 9.

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