Bruce Yardley v Apple Pty. Ltd

[2017] FWC 3780

[2017] FWC 3780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bruce Yardley
v
Apple Pty. Ltd.
(U2017/4244)

COMMISSIONER BISSETT MELBOURNE, 19 JULY 2017

Application for an unfair dismissal remedy.

[1] On 19 April 2017, Mr Bruce Yardley made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Yardley said he was notified of his dismissal on 30 March 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 29 May 2017, however it could not proceed as Mr Yardley could not be contacted. Consequently, directions were issued and Mr Yardley was directed to file an outline of submissions, witness statements and other documentary material by no later than noon on 26 June 2017.

[3] As no material had been received from Mr Yardley, on 5 July 2017 the Fair Work Commission twice attempted to telephone him, however this was unsuccessful and voicemail messages were left seeking a return call. On the same day, email correspondence was sent to Mr Yardley confirming no material had been filed. Mr Yardley was advised that if no contact from him was received by close of business that day, the matter would be listed for a non compliance hearing via telephone on 7 July 2017.

[4] On 6 July 2017, a further voicemail message was left for Mr Yardley advising the matter was listed for non compliance hearing the following morning.

[5] Mr Yardley did not attend the non compliance hearing. Apple Pty Ltd (Apple) made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Yardley had failed to comply with a direction of the Commission. Deputy President Colman waived compliance with the Fair Work Commission Rules 2013 and accepted Apple’s oral application. Correspondence was then sent to Mr Yardley informing him of Apple’s s.399A application. Mr Yardley was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday, 14 July 2017. This correspondence was sent to Mr Yardley via email and post.

[6] To date, Mr Yardley has not filed 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 Yardley did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[10] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Yardley has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, Mr Yardley has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Yardley’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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