Ben Loh v Crown Melbourne Limited

[2016] FWC 3168

[2016] FWC 3168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ben Loh
v
Crown Melbourne Limited
(U2016/54)

COMMISSIONER WILSON MELBOURNE, 23 MAY 2016

Application for relief from unfair dismissal.

[1] On 5 January 2016, Mr Ben Loh made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Loh’s employment had been terminated by Crown Melbourne Limited on 16 December 2015.

[2] The matter was listed for conciliation on 23 February 2016 and 17 March 2016 however both conciliations could not take place as there was no appearance by Mr Loh. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Loh was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 28 April 2016.

[4] Mr Loh did not comply with directions.

[5] On 3 May 2016, Crown filed an objection to the application, pursuant to section 399A of the Act, and sought the dismissal of Mr Loh’s application. Crown based their objection on grounds which include Mr Loh’s failure to comply with directions and failure to attend conciliations.

[6] On 3 May 2016, Mr Loh was sent correspondence informing him of Crown’s section 399A application. Mr Loh was directed to file submissions and other documentary material in respect of Crown’s application by close of business, on 10 May 2016. Mr Loh was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Loh 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 Crown’s objection filed on 3 May 2016 is an application to have the matter dismissed for Mr Loh’s failure to comply with directions and failure to attend the conciliations.

[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 Loh did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Loh 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 Loh’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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