Bradley Dyson v Cardinal Seafoods Pty Ltd T/A Cardinal Seafoods

[2016] FWC 6187

[2016] FWC 6187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Dyson
v
Cardinal Seafoods Pty Ltd T/A Cardinal Seafoods
(U2016/3194)

COMMISSIONER WILSON MELBOURNE, 31 AUGUST 2016

Application for relief from unfair dismissal.

[1] On 4 July 2016, Mr Dyson made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Dyson’s employment had been terminated by Cardinal Seafoods on 27 June 2016.

[2] The matter was the subject of conciliation on 26 July 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Dyson was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 15 August 2016.

[4] Mr Dyson did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 19 August 2016.

[5] Mr Dyson did not attend the non compliance hearing. Cardinal Seafoods made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Dyson had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Cardinal Seafoods’ oral application.

[6] On 19 August 2016, Mr Dyson was sent correspondence informing him of Cardinal Seafoods’ section 399A application. Mr Dyson was directed to file submissions and other documentary material in respect of Cardinal Seafoods’ application by close of business, on 26 August 2016. Mr Dyson was advised that if he failed to comply with this direction, his application would be dismissed.

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

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

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

COMMISSIONER

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