Damien Kearney v Family Access Network

[2014] FWC 7495

[2014] FWC 7495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damien Kearney
v
Family Access Network
(U2014/8613)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 4 August 2014, Mr Damien Kearney made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Kearney’s employment had been terminated by Family Access Network on 15 July 2014.

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

[3] Mr Kearney was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 6 October 2014.

[4] Mr Kearney did not comply with this direction and the matter was listed for a non compliance hearing before me on 10 October 2014.

[5] Mr Kearney did not attend the non compliance hearing. Family Access Network made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Kearney, had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Family Access Network’s oral application.

[6] On 10 October 2014, Mr Kearney was sent correspondence informing him of Family Access Network’s section 399A application. Mr Kearney was directed to file submissions and other documentary material in respect of Family Access Network’s application by close of business, on 20 October 2014, Mr Kearney was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Kearney 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 Kearney 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 Kearney’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR556901>