Bradley Mann v Wodonga Rendering Pty Ltd T/A Wodonga Meat Processors

[2020] FWC 325

[2020] FWC 325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Mann
v
Wodonga Rendering Pty Ltd T/A Wodonga Meat Processors
(U2019/12396)

COMMISSIONER BISSETT MELBOURNE, 22 JANUARY 2020

Application for an unfair dismissal remedy - s.399A application to dismiss.

[1] On 7 November 2019 Mr Bradley Mann (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Wodonga Rendering Pty Ltd T/A Wodonga Meat Processors (Respondent) on 24 October 2019.

[2] The matter was listed for conciliation on 9 December 2019 where it was not resolved.

[3] On 16 December 2019 the Applicant phoned the Commission and advised that he wanted to proceed to hearing.

[4] On 17 December 2019 Directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 25-28 February 2020. The Applicant was directed to file his material by no later than noon on 6 January 2020. No such material was received.

[5] On 6 January 2020 the Commission twice attempted to telephone Unfair Dismissals Direct (Applicant’s Representative) regarding the Applicant’s late submissions however the call went unanswered and there was no provision to leave a voice message.

[6] The Commission again attempted to contact the Applicant’s Representative on   December 2019 regarding the Applicant’s late submissions however there was no answer and the Commission was unable to leave a voice message.

[7] On 7 January 2020 the Commission sent correspondence to the Applicant’s Representative which was also copied to the Applicant regarding the Applicant’s failure to file submissions by the required date. The correspondence required the Applicant’s Representative to advice the Commission by no later than noon on Wednesday, 8 January 2020 when they intended to file submissions. The correspondence also stated that the matter was at risk of being listed for a Non-Compliance Hearing on Friday, 10 January 2020. The Applicant’s Representative did not respond to the correspondence.

[8] On 8 January 2020 the Commission again unsuccessfully attempted to contact the Applicant’s Representative. The call went unanswered and there was no provision to leave a voice message. On the same day the Commission also attempted to contact the Applicant on his nominated telephone number to discuss his matter. The Applicant did not answer the call and a voice message was left requesting a return call.

[9] As no material had been filed, the matter was listed for non-compliance hearing on 10 January 2020. The non-compliance hearing proceeded before Commissioner Bissett. The Applicant and his Representative did not attend. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the direction of the Commission. The Commissioner waived compliance of the Fair Work Commission Rules 2013 and accepted the Respondent’s application.

[10] Following the non-compliance hearing, correspondence was sent to the Applicant advising him of the Respondent’s s.399A application. The correspondence directed the Applicant to file submissions and other documentary material in respect of the s.399A application by no later than 4.00 pm on 17 January 2020. He was also advised that if no response was received his application will be dismissed without further notice. The Applicant did not file any submissions by the due date.

[11] To date, the Applicant has not filed any material with the Commission.

[12] Section 399A of the FW 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.

[13] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to make a request for an extension to file material and has not provided an explanation to the Commission for his failure to comply with the directions of the Commission.

[15] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued with this decision.

COMMISSIONER

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