s.394 - Unfair dismissal

Application for an unfair dismissal remedy - s.399A application to dismiss - application granted.

• [1] On 3 November 2021 Mr Perdikaris made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) ("FW Act") for a remedy, alleging he had been unfairly dismissed from his employment.

• [2] At a telephone directions hearing on 3 December 2021 Mr Perdikaris appeared for himself and Mr Theodoropoulous of Konstan Lawyers appeared with Mr Scarlis (Director) on behalf of the employer, KLF Holdings Pty Ltd ("KLF Holdings"). A program was set to prepare the matter for hearing and the date for hearing was set for 1 February 2022.

• [3] Mr Perdikaris was due to file his evidence and submissions on 24 December 2021. On that day Mr Perdikaris filed one, single-paged, document being a medical contraindication certificate from Dr John Evans of 51 Balcolyn Street, Balcolyn. Dr Evans described the medical contraindication as "Covid-19 Vaccine Major Anxiety." Mr Perdikaris lives in Belmore in Sydney, which is approximately 120km from Balcolyn - a small suburb on the shore of Lake Macquarie.

• [4] No further material was filed by Mr Perdikaris to support his claim, in fact there has been no contact from Mr Perdikaris at all since 24 December 2021.

• [5] KLF Holdings filed materials in response that included media reports suggesting that Dr Evans came out of retirement at aged 84, issued invitations for those interested in vaccine exemptions to "call and ask" and their "paperwork will ... be processed", that Dr Evans allegedly issued hundreds of exemptions for Covid-19 vaccinations "without proper medical consultation", and that Dr Evans' medical registration was suspended not long after Mr Perdikaris' contraindication certificate was issued.

• [6] Mr Perdikaris did not attend the hearing on 1 February 2022. Mr Konstantinidis of Konstan Lawyers and Mr Scarlis appeared for the Respondent at the hearing. Despite several attempts to contact Mr Perdikaris by telephone, text message and by email, he could not be reached.

• [7] At the hearing Mr Konstantinidis pressed for the matter to be immediately dismissed. I refused the request out of concern that Mr Perdikaris might have had some reasonable explanation for his non-attendance.

• [8] On 2 February 2022 the Respondent filed a Form F1 - application pursuant to s.399A of the FW Act to dismiss Mr Perdikaris' application for unfair dismissal remedy. A copy of the application was served on Mr Perdikaris and directions were made for Mr Perdikaris to provide a written submission by 4:00pm on 18 February 2022. Mr Perdikaris did not respond to this email and did not provide any written submissions.

(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."

• [10] In Lockyear v Graeme Cox [2021] FWCFB 875 at [57] the Full Bench found:

"[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application."

• [11] In this matter there are no facts in dispute that require me to conduct a hearing (per s.397).

• [12] Section 399A(2) is obviously satisfied by the Respondent's application. Similarly s.399A(1)(a) and (b) are satisfied by Mr Perdikaris' failure to attend the hearing on 1 February 2022 and then his failure to comply with the subsequent procedural directions referred to the above. The jurisdictional pre-requisites are met for Mr Perdikaris' application to be dismissed[1] and it is a matter of discretion whether I do so.

• [13] The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant's right to have their application heard and determined according to law before they have had their 'day in court'.[2]

• [14] Many of the notices sent to Mr Perdikaris contained a warning that "If Mr Perdikaris does not file any submissions or material in relation to the s.399A application, the Commission will proceed to determine the application on the material before it, which may result in the dismissal of Mr Perdikaris' claim for an unfair dismissal remedy."

• [15] Mr Perdikaris did file something in accordance with the initial directions - being a purported contraindication certificate signed by the apparently now-suspended Dr Evans. Dr Evans operated in a locality far away from Mr Perdikaris' home.

• [16] Mr Perdikaris might have filed the purported contraindication certificate in answer to the assertion made in KLF Holdings in its Form F3 Response that he had told his employer that he was trying to obtain a "fake" certificate. Mr Perdikaris' filing was met with a barrage of material that suggests that the contraindication certificate was forensically worthless even if it was actually provided by Dr Evans (prior to Dr Evans' suspension by the Medical Council). Although I do not need to speculate, it is possible that Mr Perdikaris decided to abandon his claim rather than attend the hearing and answer questions on how the purported contraindication certificate was obtained.

• [17] In any event KLF Holdings, like every respondent, is entitled to ask for finality. Mr Perdikaris has not taken up the opportunity to advance his case. In the circumstances I see no utility in allowing Mr Perdikaris' claim to continue, and I therefore grant KLF Holdings' application under s.399A.

• [18] An order giving effect to this decision will be issued separately.[3]

[1] Cf Lockyear v Graeme Cox [2021] FWCFB 875 at [55].

[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31].

[3] PR738669.

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