Andrew Ratajczak v Boart Longyear Pty Ltd

[2015] FWC 7985

[2015] FWC 7985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Ratajczak
v
Boart Longyear Pty Ltd
(U2015/11400)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 25 August 2015, Mr Andrew Ratajczak made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Ratajczak’s employment had been terminated by Boart Longyear Pty Ltd on 12 August 2015.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Ratajczak was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 26 October 2015.

[4] The Respondent requested directions be vacated, and a mention in relation to the matter was listed for 21 October 2015. Several attempts were made to contact Mr Ratajczak on the 16 October 2015 and 19 October 2015. Mr Ratajczak was not able to be contacted for the mention listed on 21 October 2015. A message was left for Mr Ratajczak to contact the Commission, Mr Ratajczak did not contact the Commission.

[5] Mr Ratajczak did not file his material by 26 October 2015 and a further attempt to contact Mr Ratajczak was made on the 27 October 2015.

[6] On 2 November 2015, Boart Longyear filed an objection to the application and sought the dismissal of Mr Ratajczak’s application. Boart Longyear based their objection on grounds which include:

(a) failure to comply with directions; and

[7] On 5 November 2015 Mr Ratajczak was sent a letter informing him Boart Longyear’s section 399A application. Mr Ratajczak was directed to file submissions and other documentary material in respect of Boart Longyear’s application by close of business, on 16 November 2015. Mr Ratajczak was advised that if he failed to comply with this direction, his application would be dismissed.
[8] On 3 December 2015, Mr Ratajczak was sent a text message asking him to “contact the Commission urgently or your unfair dismissal application will be dismissed.” Mr Ratajczak did not contact the Commission.

[9] Mr Ratajczak did not file any material with the Commission.

[10] 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.

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

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

[13] Mr Ratajczak has failed to respond to the Commission’s repeated attempts to contact him and has failed to provide any explanation for his failure to comply with directions. I consider his failure to comply is unreasonable and I will exercise my discretion to dismiss his application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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