Christopher Morrison v Randstad Pty Limited

[2020] FWC 1151

[2020] FWC 1151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Morrison
v
Randstad Pty Limited
(U2019/13380)

DEPUTY PRESIDENT BINET PERTH, 4 MARCH 2020

Application for an unfair dismissal remedy.

[1] On 29 November 2019, Mr Morrison made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Morrison’s employment had been terminated by Randstad Pty Limited (Randstad) on 8 November 2019.

[2] The matter was the subject of conciliation on 10 January 2020 however, the matter was not resolved. Consequently, the matter was listed for conference on 18 February 2020.

[3] On 13 February 2020, Mr Morrison emailed the Commission indicating that he would be unavailable at the listed time of the Conference and requesting information as to how he could discontinue the Application. On 14 February 2020, the Commission emailed Mr Morrison to advise of the formalities of discontinuing an application and asked Mr Morrison to complete a Form F50 - Notice of Discontinuance.

[4] On 18 February 2020, the Commission sent urgent correspondence by email and SMS to Mr Morrison advising the hearing remained listed and that the Form F50 was required in order to vacate the Conference.

[5] Mr Morrison did not respond to that correspondence and did not attend the conference.

[6] On 18 February 2020, Randstad made an application, pursuant to s.399A of the Act, seeking the dismissal of Mr Morrison’s application.

[7] On 21 February 2020, Mr Morrison was sent correspondence informing him of Randstad’s section 399A application. Mr Morrison was directed to file a Notice of Discontinuance or file submissions and other documentary material in response to Randstad’s application by close of business, on 26 February 2020.

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

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

[11] Mr Morrison failed to comply with a direction to file materials or a Notice of Discontinuance and failed to attend a Conference. On the materials available to me I am satisfied that in the circumstances it was unreasonable for him to do so. In those circumstances, I will exercise my discretion and dismiss Mr Morrison’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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