Brendon Holmes v Hitachi Construction Machinery (Australia)

[2013] FWC 5271

[2013] FWC 5271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendon Holmes
v
Hitachi Construction Machinery (Australia)
(U2013/8149)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 AUGUST 2013

Application for relief from unfair dismissal dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 3 April 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Brendon Holmes (the Applicant). The Applicant’s employment had been terminated by Hitachi Construction Machinery (Australia) (the Respondent) on 13 March 2013.

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

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 24 June 2013. I note that on 14 June 2013 the Fair Work Commission (the Commission) received the notice of listing as undelivered. The Commission attempted to contact the Applicant on 14 and 17 June 2013 without success.

[4] On 25 June 2013, the Applicant contacted the Commission and advised that he had received the notice of listing by email. I note that the Applicant advised the Commission that he was unable to attend the listing dates due to work commitments. The Applicant did not request an extension of time to file his submissions, witness statements and documentary material.

[5] As the Applicant failed to comply with this direction, the matter was listed for a non compliance hearing before me on 28 June 2013.

[6] The Applicant failed to attend the non compliance hearing. The Respondent made an application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with the direction of the Commission. I waived compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[7] On 4 July 2013, the Applicant was sent correspondence informing him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 12 July 2013. The Applicant was advised that if he failed to comply with this direction, his application would be dismissed.

[8] On 8 July 2013, the Commission received submissions of the Respondent with regard to their s.399A application. On 17 July 2013, the submissions were sent to the Applicant with further directions to file submissions and other documentary material in respect to the Respondent’s submissions by close of business, 26 July 2013.

[9] The Applicant 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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 the Applicant did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[13] While I accept that an employee who has been dismissed is required, by necessity and because the employee must mitigate his or her loss, to find alternative employment, that does not absolve the Applicant of his obligation to take steps to prosecute his claim. In this case, other than lodging the application and participating in the conciliation conference, the Applicant has taken no other steps to progress his claim.

[14] The Act provides at s.381 (2) that the procedures adopted by the Commission should afford both employers and employees a fair go all round.

[15] The Respondent submitted that the Applicant’s failure to comply with the directions has increased their costs and is an abuse of process.

[16] In this matter the Applicant has not taken any steps to prosecute his case. He has not sought an adjournment or responded to communications from the Commission. The Applicant cannot without more, expect to have his application put on hold until a time that suits his convenience.

[17] The Applicant has not filed any material in opposition to the Respondent’s application that the application be dismissed because he failed to comply with the Commission’s directions.

[18] After considering all the material, I have therefore decided pursuant to s.399A(1)(b) to dismiss the Applicant’s application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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