Curtis Eddy v Peter Wood T/A Ric Andrews Motorcycles

[2013] FWC 8685

[2013] FWC 8685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Curtis Eddy
v
Peter Wood T/A RIC Andrews Motorcycles
(U2013/11102)

COMMISSIONER WILSON MELBOURNE, 4 NOVEMBER 2013

Application for relief from unfair dismissal dismissed.

[1] On 2 July 2013, Mr Curtis Eddy made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Eddy’s employment had been terminated by Peter Wood T/A RIC Andrews Motorcycles (Andrews Motorcycles) on 21 June 2013.

[2] The matter was the subject of conciliation on 7 August 2013, however, the Applicant was not available. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Eddy was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 30 September 2013.

[4] Mr Eddy did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 11 October 2013.

[5] On 11 October 2013, the Respondent filed an objection to the application and sought the dismissal of Mr Eddy’s application. Andrews Motorcycles based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the non compliance hearing.

[6] On 14 October 2013, Mr Eddy was sent correspondence informing him of the Respondent’s s.399A application. Mr Eddy was directed to file submissions and other documentary material in respect of Mr Eddy’s application by close of business, on 28 October 2013. Mr Eddy was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Eddy did not file any material with the Commission.

[8] 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.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

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

COMMISSIONER

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