Anthony Kleve v Timevale Pty Ltd T/A Aussie World

[2020] FWC 4161

[2020] FWC 4161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Kleve
v
Timevale Pty LTD T/A Aussie World
(U2020/4852)

COMMISSIONER BISSETT MELBOURNE, 10 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 15 April 2020 Anthony Kleve made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the FW Act). Mr Kleve stated his employment had been terminated by Timevale Pty LTD T/A Aussie World (the Respondent).

[2] The matter was listed for conciliation on 26 May 2020 by telephone. At the conciliation, the parties came to an agreement to settle the matter. The cooling off period was waived and the file was closed.

[3] On 16 July 2020 the Respondent’s representative emailed the Commission advising that Mr Kleve had informed the Respondent he did not intend to sign the proposed terms of settlement document agreed to at the conciliation conference on 26 May 2020. The Respondent’s representative requested that the matter be listed for a Hearing to determine whether Mr Kleve’s application should be dismissed under s. 399A(1)(c) of the FW Act.

[4] On 21 July 2020 a Notice of Listing was sent to the parties listing the matter for Mention on 31 July 2020. This hearing was subsequently vacated.

[5] Later that day, Mr Kleve was emailed by the Commission advising that the Respondent had made an application under s. 399A of the FW Act to dismiss his unfair dismissal application as a settlement agreement had been concluded. The email directed Mr Kleve to file with the Commission, and serve on the Respondent, submissions providing reasons as to why the Commission should not dismiss his application, and evidence or other documentary material he had to support his reasons. Mr Kleve was given until noon on 28 July 2020 to provide this material. Mr Kleve was advised that if he failed to comply with this direction, his application would likely be dismissed. The email also advised Mr Kleve that the previously listed Mention had been cancelled.

[6] Mr Kleve did not file any material with the Commission in response to this correspondence.

[7] 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.

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

[9] As Mr Kleve did not file any material in opposition to the application to dismiss his application for unfair dismissal. I will therefore determine the application on the basis of the material filed. Mr Kleve has not sought to respond to the Commission’s correspondence. I am satisfied that this is unreasonable.

[10] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Kleve 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 Kleve’s application. An Order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

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