Daniel Maybir v Henselite (Australia) Pty Ltd

[2016] FWC 4934

[2016] FWC 4934

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Maybir
v
Henselite (Australia) Pty Ltd
(U2016/5043)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 JULY 2016

Application for relief from unfair dismissal.

[1] On 2 March 2016, Mr Daniel Maybir made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Maybir’s employment had been terminated by Henselite (Australia) Pty Ltd on 11 February 2016.

[2] The matter was the subject of conciliation on 29 March 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing on 4 and 5 July 2016.

[3] Mr Maybir was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 9 May 2016.

[4] Mr Maybir did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 3 June 2016.

[5] Mr Maybir was in attendance at the non compliance hearing.

[6] Commissioner Bissett issued new directions and Mr Maybir was required to file his material by 17 June 2016 and the matter was listed for hearing on 18 and 19 July 2016.

[7] Mr Maybir did not comply with the new directions and the matter was listed for a non compliance hearing before Commissioner Wilson on 24 June 2016.

[8] Mr Maybir did attend the non compliance hearing. Henselite made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Maybir had failed to comply with the direction of the Fair Work Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Henselite’s oral application.

[9] On 24 June 2016, Mr Maybir was sent correspondence informing him of Henselite’s section 399A application. Mr Maybir was directed to file submissions and other documentary material in respect of Henselite’s application by close of business, on 1 July 2016. Mr Maybir was advised that if he failed to comply with this direction, his application would be dismissed.

[10] Mr Maybir did not file any material with the Commission.

[11] 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.

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

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

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Maybir 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 Maybir’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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