Anh Thanh Nguyen v Couriers Please Pty Ltd T/A Couriers Please

[2015] FWC 5415

[2015] FWC 5415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anh Thanh Nguyen
v
Couriers Please Pty Ltd T/A Couriers Please
(U2015/4598)

COMMISSIONER WILSON MELBOURNE, 10 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 2 April 2015, Mr Anh Thanh Nguyen made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Nguyen’s application form stipulated that the termination of his employment by Couriers Please Pty Ltd took effect on 13 March 2015.

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

[3] Mr Nguyen was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 13 July 2015.

[4] Mr Nguyen did not comply with this direction.

[5] On 14 July 2015, Couriers Please Pty Ltd filed an objection to the application and sought the dismissal of Mr Nguyen’s application. Couriers Please Pty Ltd based their objection on grounds which include failure to comply with a direction.

[6] On 16 July 2015, Mr Nguyen was sent correspondence informing him of Couriers Please Pty Ltd’s section 399A application. Mr Nguyen was directed to file submissions and other documentary material in respect of Couriers Please Pty Ltd’s application by close of business, on 24 July 2015. Mr Nguyen was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Nguyen 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] I am satisfied that Couriers Please Pty Ltd’s objection filed on 14 July 2015 is an application to have the matter dismissed for Mr Nguyen’s failure to comply with a direction.

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

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

[12] After considering all the material, Mr Nguyen’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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