Brett Mathewson v James & Judith Robinson T/A J E & J Robinson P/L

[2016] FWC 2358

[2016] FWC 2358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Mathewson
v
James & Judith Robinson T/A J E & J Robinson P/L
(U2015/15234)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 APRIL 2016

Application for relief from unfair dismissal.

[1] On 20 November 2015, Mr Brett Mathewson made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Mathewson’s employment had been terminated by James & Judith Robinson T/A J E & J Robinson P/L (Robinson) on 17 November 2015.

[2] The matter was listed for conciliation on 4 January 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing

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

[4] On 17 February 2016, Robinson filed an objection to the application and sought the dismissal of Mr Mathewson’s application. Robinson based their objection on grounds which included failure to comply with directions.

[5] On 18 February 2016, Mr Mathewson was sent correspondence informing him of Robinson’s section 399A application. Mr Mathewson was directed to file submissions and other documentary material in respect of Robinson’s application by close of business, on 29 February 2016. Mr Mathewson was advised that if he failed to comply with this direction, his application would be dismissed.

[6] Mr Mathewson did not file any material with the Commission.

[7] 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.

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

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

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

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

DEPUTY PRESIDENT

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