Craig Merchant v Forex Capital Trading Pty Ltd T/A Forexct

[2017] FWC 496

[2017] FWC 496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Merchant
v
Forex Capital Trading Pty Ltd T/A Forexct
(U2016/13132)

DEPUTY PRESIDENT CLANCY MELBOURNE, 25 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 31 October 2016, Mr Merchant made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Merchant’s employment had been terminated by Forex Capital Trading Pty Ltd T/A Forexct (Forex) on 10 October 2016. Australian Dismissal Services was listed as Mr Merchant’s representative on his application form.

[2] The matter was listed for conciliation on 5 December 2016, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Merchant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on Monday 9 January 2017. Mr Merchant did not comply with this direction.

[4] On 10 January 2017, Mr Merchant’s representative filed a Notice of Representative Ceasing to Act. Later that day, an attempt was made to telephone Mr Merchant directly to ascertain the status of his material, however no message was able to be left.

[5] The matter was listed for a non compliance hearing before Commissioner Bissett on 13 January 2017.

[6] Mr Merchant did not attend the non compliance hearing. Forex made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Merchant had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Forex’s oral application.

[7] On 13 January 2017, Mr Merchant was sent correspondence informing him of Forex’s section 399A application. Mr Merchant was directed to file submissions and other documentary material in respect of Forex’s application by close of business, on 20 January 2017. Mr Merchant was advised that if he failed to comply with this direction, his application would be dismissed.

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

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Merchant has failed to respond to the attempts by the Commission to contact him. He has shown no willingness to prosecute his case and he has provided no explanation for his failure to comply with directions. In these circumstances, I will exercise my discretion under s.399A(1)(b) and dismiss Mr Merchant’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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