Brad Gracie v Galaxy Inks & Coatings Australia Pty Ltd

[2016] FWC 691

[2016] FWC 691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brad Gracie
v
Galaxy Inks & Coatings Australia Pty Ltd
(U2015/12622)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 5 November 2015, Mr Brad Gracie made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Gracie’s employment had been terminated by Galaxy Inks & Coatings Australia Pty Ltd on 19 October 2015.

[2] The matter was listed for conciliation on 4 December 2015, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Gracie was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 11 January 2016.

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

[5] On 12 and 13 January 2016, the Fair Work Commission attempted to telephone Mr Gracie, however there was no answer and voicemail messages were left. Also, on 13 January 2016, an email was sent to Mr Gracie which advised that the matter would be listed for a non compliance hearing.

[6] The matter was listed for a non compliance hearing before me on 15 January 2016.

[7] Mr Gracie did not attend the non compliance hearing. Galaxy Inks made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Gracie had failed to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Galaxy Inks’ oral application.

[8] On 15 January 2016, Mr Gracie was sent correspondence informing him of Galaxy Inks’ section 399A application. Mr Gracie was directed to file submissions and other documentary material in respect of Galaxy Inks’ application by close of business, on 25 January 2016. Mr Gracie was advised that if he failed to comply with this direction, his application would be dismissed.

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

[10] 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.

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

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

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

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

DEPUTY PRESIDENT

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