Ainsley Brewer v Rio Tinto

[2022] FWC 836

[2022] FWC 836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ainsley Brewer
v

Rio Tinto

(U2022/2066)

DEPUTY PRESIDENT BINET PERTH, 13 APRIL 2022

Application for an unfair dismissal remedy - Application by the Respondent pursuant to s 399A of the Fair Work Act – Application dismissed.

1. On 16 February 2022, Mr Ainsley Brewer (Mr Brewer) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Rio Tinto.

1. On 21 March 2022, Rio Tinto filed a Form F3 - Employer response to unfair dismissal application raising the jurisdictional objections that Mr Brewer’s application was lodged out of time and that Mr Brewer earned more than the high income threshold.

1. The Application was allocated to my Chambers for determination.

1. Directions were issued to parties on 23 March 2022 which required Mr Brewer to file his materials in relation to the jurisdictional objections to the Application by 31 March 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

1. On 29 March 2022 Mr Brewer requested an extension of time to file his materials. This request was granted and amended Directions were issued to parties on 29 March 2022. Mr Brewer was provided until 10am (AWST) Monday, 4 April 2022 to file his materials.

1. Mr Brewer failed to file any materials in accordance with the revised filing date.

1. On 5 April 2022, Chambers wrote to Mr Brewer and reminded him that his materials in relation to the jurisdictional objections of his application were overdue.

1. Later the same day Rio Tinto made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Brewer had failed to comply with the Directions (Dismissal Application).

1. On the same day Mr Brewer was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on Thursday 7 April 2022. Chambers advised Mr Brewer that if he did not file submissions and evidence by this time, the Application would be dismissed pursuant to section 399A of the FW Act.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Brewer by 4pm Thursday 7 April 2022, or since.

1. Section 399A of the FW Act provides:

“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.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

1. Mr Brewer failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr Brewer has still not filed any materials in support of his Application or in response to the Dismissal Application.

1. I am satisfied that Mr Brewer has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Rio Tinto and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

1. An Order to this effect will be issued with this decision.[1]

 

DEPUTY PRESIDENT

[1] PR740272

Printed by authority of the Commonwealth Government Printer

<PR740271>