Brian Young v Balustrade Installations Pty Ltd

[2013] FWC 4032

[2013] FWC 4032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Young
v
Balustrade Installations Pty Ltd
(U2013/7097)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 JUNE 2013

Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 4 March 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Brian Young (the Applicant). The Applicant’s employment had been terminated by Balustrade Installations Pty Ltd (the Respondent) on 11 February 2013.

[2] Conciliation was listed for 26 March 2013 and was not able to take place. 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, 3 May 2013. The Applicant made a request for an extension to file his submissions. A further period was permitted and was subsequently directed to file his material by 24 May 2013.

[4] On 4 April 2013, the Applicant requested a second conciliation which was scheduled for 2 May 2013. Shortly after the second conciliation the parties reached an in principle agreement. However, the Applicant became uncontactable and the finalisation of the agreement was never able to occur.

[5] Further, the Applicant failed to comply with the direction to file material by 24 May 2013 and the matter was listed for a non compliance hearing before Commissioner Wilson on 30 May 2013.

[6] The Applicant failed to attend the non compliance hearing. In the absence of the Applicant, Commissioner Wilson decided to send correspondence to the Applicant requesting that he provide the Fair Work Commission (the Commission) with an explanation as to his failure to file material and attend the hearing. The Commissioner advised that failure to comply with this direction may result in the application being dismissed.

[7] The Applicant did not file any response with the Commission.

[8] On 11 June 2013, the Respondent filed an objection to the application and sought the dismissal of the Applicant’s application. The Respondent based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the non compliance hearing.

[1] Further, the Respondent claimed that the Applicant’s conduct has resulted in unnecessary costs in connection with this matter.

[2] The Applicant was sent a copy of the Respondent’s objection (by express post and email) and was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 19 June 2013.

[3] The Applicant did not file any material with the Commission.

[4] 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.

[5] Taking into account the provisions of s.399A and specifically s.399A(2), I am satisfied that the Respondent’s correspondence filed on 11 June 2013 is an application to have the matter dismissed for the Applicant’s failure to meet the provisions of ss.399A(1)(a) and (b).

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

[7] As the Applicant did not file any material in opposition to the application to dismiss and has failed to attend a hearing, I have decided to determine the application on the papers.

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

DEPUTY PRESIDENT

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