Anthony Harris v Larrakia Nation Aboriginal Corporation

[2014] FWC 9092

[2014] FWC 9092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Harris
v
Larrakia Nation Aboriginal Corporation
(U2014/14985)

COMMISSIONER BISSETT MELBOURNE, 15 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 11 November 2014, Mr Anthony Harris made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Harris’ employment had been terminated by Larrakia Nation Aboriginal Corporation (Respondent) on 2 October 2014.

[2] The application was lodged outside the 21 day legislated timeframe and on 11 November 2014 the Commission wrote to the Mr Harris and the Respondent explaining the matter would be listed for a conference/hearing on whether to allow an extension of time.

[3] The matter was listed for hearing and directions were issued. Mr Harris was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon on 26 November 2014.

[4] Mr Harris did not comply with the directions. My associate was in contact with Mr Harris on 27 November 2014 and 3 December 2014 and he was considering whether to continue with his application.

[5] At the hearing on 4 December 2014 Mr Harris did not attend and could not be contacted.

[6] The Respondent made an oral application pursuant to s.399A of the Act, that the matter be dismissed as Mr Harris had failed to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[7] On 4 December 2014, Mr Harris was sent correspondence informing him of the Respondent’s s.399A application. Mr Harris was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, on 11 December 2014. Mr Harris was advised that if he failed to comply with this direction, his application would be dismissed.

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

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

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

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

COMMISSIONER

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