Andrew Kennard v Public Services Club Inc T/A Club Central

[2016] FWC 3510

[2016] FWC 3510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Kennard
v
Public Services Club Inc T/A Club Central
(U2016/5457)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 31 MAY 2016

Application for relief from unfair dismissal.

[1] On 17 March 2016, Mr Andrew Kennard made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Kennard’s employment had been terminated by Public Services Club Inc T/A Club Central on 11 March 2016.

[2] The matter was listed for conciliation on 5 May 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Kennard was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 9 May 2016.

[4] Mr Kennard did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Kovacic on 20 May 2016.

[5] Mr Kennard did not attend the non compliance hearing. Club Central made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Kennard had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted Club Central’s oral application.

[6] On 20 May 2016, Mr Kennard was sent correspondence informing him of Club Central’s section 399A application. Mr Kennard was directed to file submissions and other documentary material in respect of Club Central’s application by close of business, on 27 May 2016. Mr Kennard was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Kennard did not file any material with the Commission.

[8] 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.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As Mr Kennard did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] As Mr Kennard has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Kennard has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Kennard’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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