Damon Bradley v Paynter Dixon Qld

[2017] FWC 142

[2017] FWC 142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damon Bradley
v
Paynter Dixon QLD
(U2016/11630)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 JANUARY 2017

Application for an unfair dismissal remedy.

[1] On 21 September 2016, Mr Damon Bradley made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Bradley’s employment had been terminated by Paynter Dixon QLD on 1 September 2016.

[2] The matter was the subject of conciliation and there was some correspondence regarding a possible settlement after it, however it was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Bradley was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 13 December 2016.

[4] Mr Bradley did not comply with this direction. On 14 December 2016, the Fair Work Commission telephoned Mr Bradley and he said he needed more time to file his material. Mr Bradley was advised he should submit an application for an extension of time by close of business that day and he said he would do so. Mr Bradley did not file an application for an extension of time to file material.

[5] On 15 December 2016, the matter was listed for a non compliance hearing before me on 19 December 2016.

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

[7] On 20 December 2016, Mr Bradley was sent correspondence informing him of Paynter Dixon QLD’s s.399A application. Mr Bradley was directed to file submissions and other documentary material in respect of Paynter Dixon QLD’s application by close of business, on 30 December 2016. Mr Bradley was advised that if he failed to comply with this direction, his application would be dismissed.

[8] To date, Mr Bradley has not filed 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 Bradley 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. As Mr Bradley has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable. Mr Bradley has not demonstrated a willingness to prosecute his case since the Directions were issued on 23 November 2016 and nor has he engaged in the non-compliance hearing and subsequent direction to file submissions in response. In these circumstances, I will exercise my discretion and dismiss Mr Bradley’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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