Daniel MacRae v Rembrook Pty Ltd T/A Royal George Hotel

[2016] FWC 2403

[2016] FWC 2403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel MacRae
v
Rembrook Pty Ltd T/A Royal George Hotel
(U2016/3634)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 APRIL 2016

Application for relief from unfair dismissal.

[1] On 7 January 2016, Mr Daniel MacRae made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr MacRae’s employment had been terminated by Rembrook Pty Ltd T/A Royal George Hotel on 21 December 2015.

[2] The matter was the subject of conciliation on 25 February 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr MacRae was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 21 March 2016.

[4] Mr MacRae did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Kovacic on 1 April 2016.

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

[6] On 1 April 2016, Mr MacRae was sent correspondence informing him of Rembrook’s section 399A application. Mr MacRae was directed to file submissions and other documentary material in respect of Rembrook’s application by close of business, on 8 April 2016. Mr MacRae was advised that if he failed to comply with this direction, his application would be dismissed.

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

[11] As Mr MacRae has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr MacRae has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr MacRae’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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