Benjamin Kelly v Bettaframe & Truss

[2019] FWC 658

[2019] FWC 658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Kelly
v
Bettaframe & Truss
(U2018/11907)

COMMISSIONER JOHNS SYDNEY, 4 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 20 November 2019, Mr Benjamin Kelly (Applicant) made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act). The Applicant’s employment had been terminated by Bettaframe & Truss (Respondent) on 15 November 2018.

[2] Conciliation was attempted, but the matter remained unresolved.

[3] On 19 December 2018, a Notice of Listing was sent to the parties scheduling Mention/Directions Hearing for 9 January 2019.

[4] The Applicant failed to attend Mention/Directions Hearing.

[5] At the Mention/Directions Hearing the Respondent made an application under s 399A of the FW Act.

[6] On 11 January 2019, the Applicant was sent correspondence informing him of the Respondent’s section 399A application. The Applicant was directed to file submissions and other documentary material in respect of Respondent’s application by no later than 4:00PM 18 January 2019. The Applicant was advised that if he failed to comply with this direction, his application would be dismissed.

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

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

[11] After considering all the material, The Applicant’s application for remedy from unfair dismissal is dismissed.

[12] An order to this effect will be issued with this decision.

COMMISSIONER

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