Brent Parrott-Jolly v Residential Projects Australia

[2016] FWC 1748

[2016] FWC 1748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Parrott-Jolly
v
Residential Projects Australia
(U2015/14438)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 MARCH 2016

Application for relief from unfair dismissal.

[1] On 29 November 2015, Mr Brent Parrott-Jolly made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Parrott-Jolly’s employment had been terminated by Residential Projects Australia on 26 October 2015.

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

[3] Mr Parrott-Jolly was directed to file an outline of submissions, witness statements and other documentary material he wished to rely on by noon, 8 February 2016.

[4] Mr Parrott-Jolly did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 4 March 2016.

[5] Mr Parrott-Jolly did not attend the non compliance hearing. Residential Projects Australia made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Parrott-Jolly had failed to comply with the direction of the Fair Work Commission. Commissioner Roe waived compliance with the Fair Work Commission Rules 2013 and accepted Residential Projects Australia’s oral application.

[6] On 4 March 2016, Mr Parrott-Jolly was sent correspondence informing him of Residential Projects Australia’s section 399A application. Mr Parrott-Jolly was directed to file submissions and other documentary material in respect of Residential Projects Australia’s application by close of business, 11 March 2016. Mr Parrott-Jolly was advised that if he failed to comply with this direction, his application would be dismissed.

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

[11] Mr Parrott-Jolly has provided no explanation for his failure to comply with directions as such, I find that his failure was unreasonable.

[12] The power to dismiss an application, if the non-compliance was unreasonable, is discretionary. Mr Parrott-Jolly has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his claim. In those circumstances, I will exercise my discretion and dismiss Mr Parrott Jolly’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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