Carlyle v Elevoc Constructions

[2016] FWC 258

[2016] FWC 258

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Joshua Carlyle
v
Elevoc Constructions
(U2015/14090)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 20 JANUARY 2016
Application for relief from unfair dismissal.

[1]        On 5 November 2015, Mr Joshua Carlyle made an application for remedy for unfair

dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Carlyle’s employment

had been terminated by Elevoc Constructions on 16 October 2015.

[2]        The matter was the subject of conciliation, however, the matter was not resolved.

Consequently, directions were issued.

[3]        Mr Carlyle was directed to file an outline of submissions, any witness statements and

other documentary material he wished to rely on by noon, on 4 January 2016.

[4]        On 6 January 2016, a Fair Work Commission staff member spoke with Mr Carlyle

about his non compliance with directions. Mr Carlyle said he did not receive the directions,

but would participate in the non compliance hearing which he was advised would take place.

[5]        The matter was listed for a non compliance hearing before Commissioner Johns on 8

January 2016.

[6]        Mr Carlyle did not attend the non compliance hearing. Elevoc Constructions made an

oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Carlyle had

failed to comply with the direction of the Commission. Commissioner Johns waived

compliance with the Fair Work Commission Rules 2013 and accepted Elevoc Constructions’s

oral application.

[7]        On 8 January 2016, Mr Carlyle was sent correspondence informing him of Elevoc

Constructions’s section 399A application. Mr Carlyle was directed to file submissions and

other documentary material in respect of Elevoc Constructions’s application by close of

business, on 15 January 2016. Mr Carlyle was advised that if he failed to comply with this

direction, his application would be dismissed.

[8]        Mr Carlyle did not file any material with the Commission.

[2016] FWC 258

[9]        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.

[10]      Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act.

[11]      As Mr Carlyle did not file any material in opposition to the application to dismiss, I

will determine the application on the papers.

[12]      As Mr Carlyle has provided no explanation for his failure to comply with directions, I

find that his failure was unreasonable.

[13]      The power to dismiss an application if the non-compliance was unreasonable is

discretionary. Mr Carlyle 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 Carlyle’s application. An order giving effect to this

decision will be issued today.

DEPUTY PRESIDENT

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