Christopher Bishop v K L Ballantyne Pty Ltd T/A London Tavern

[2014] FWC 7226

[2014] FWC 7226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Bishop
v
K L Ballantyne Pty Ltd T/A London Tavern
(U2014/8390)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 17 July 2014, Mr Christopher Bishop made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Bishop’s employment had been terminated by K L Ballantyne Pty Ltd T/A London Tavern on 26 June 2014.

[2] The matter was listed for conciliation on 21 August 2014 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Bishop was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 26 September 2014.

[4] On 23 September 2014, London Tavern filed an application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Bishop had failed to comply with the direction of the Fair Work Commission. London Tavern based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the non compliance hearing.

[5] On 25 September 2014, Mr Bishop was sent correspondence informing him of London Tavern’s section 399A application. Mr Bishop was directed to file submissions and other documentary material in respect of London Tavern’s application by close of business, on 8 October 2014. Mr Bishop was advised that if he failed to comply with this direction, his application would be dismissed.

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

[10] After considering all the material, Mr Bishop’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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