DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Douglas Stark
v
A Plus Plastics Pty Ltd
(U2018/6788)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 28 SEPTEMBER 2018

Application for an unfair dismissal remedy –– applicant’s failure to comply with directions – application dismissed.

[1] On 26 June 2018, Mr Douglas Stark (the applicant) applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, A Plus Plastics Pty Ltd (the Respondent).

[2] On 17 August 2018, following an unsuccessful conciliation, I listed the matter for hearing on 12 October 2018, in relation to the merits of the Applicant’s application. I also issued directions for the filing of material.

[3] The directions included that the Applicant’s outline of submissions, witness statements and any other documentary material on which he wished to rely in support of his application for an unfair dismissal remedy were due by 4.00pm on 7 September 2018. My chambers did not receive any material or otherwise hear from the Applicant by this deadline.

[4] At 5:00pm on 7 September 2018, my chambers phoned the Applicant in relation to his non-compliance with the directions. The Applicant indicated that he had not prepared any material because he was unfamiliar with this jurisdiction. My chambers directed the Applicant to the Fair Work Commission website for guidance in relation to preparing for his matter and invited the Applicant to make contact as soon as practicable to advise whether he intended to submit any material.

[5] On 13 September 2018, my chambers sent the following letter to the Applicant by Express Post, which was delivered on 17 September 2018 at 12.10pm:

‘13 September 2018

Douglas John Stark

119 Wyangala Cres

Leumeah NSW, 2560

Dear Mr Stark,

U2018/6788 – Stark, Douglas John v Aplus Plastic

I write in relation to the unfair dismissal application you lodged against your former employer, Aplus Plastic, on 26 June 2018. You were directed to file with the Fair Work Commission an outline of submissions, witness statements and other documentary material in support of your application by no later than 4.00pm on 7 September 2018. The Direction was issued on 17 August 2018 and sent to you by registered post.

I am writing to advise that you are in breach of the above Direction. I phoned you on the afternoon of 7 September 2018, and you explained that you have not prepared or submitted any evidence.

The Commission requires strict compliance with Directions for the filing and serving of evidence. Can you please indicate by 4.00pm on Tuesday 18 September 2018 why the Senior Deputy President should not dismiss your application?

Please contact me on (02) 9308 1813 or email Chambers.Hamberger.SDP@fwc.gov.au to discuss this letter.

Kind Regards,

Mathew Dean

Associate to Senior Deputy President Hamberger’

[6] My chambers did not receive any communication of any sort from the Applicant. My chambers also unsuccessfully sought to phone the Applicant on 24 and 26 September 2018 and left a voice message for the Applicant to urgently make contact.

[7] My chambers again unsuccessfully sought to phone the Applicant this morning and left a voice message.

Consideration

[8] I am satisfied that the Applicant has unreasonably failed to comply with my direction to file relevant material by 4.00pm on 7 September 2018.

[9] I am satisfied the Applicant has made no attempt to contact chambers, after being invited by my chambers to do so on numerous occasions.

[10] I therefore consider it appropriate to dismiss the application.

Conclusion

[11] Mr Stark’s application for an unfair dismissal remedy is dismissed. The hearing listed on 12 October 2018 will therefore not proceed. The listed will be vacated accordingly, and the Commission’s file in relation to Mr Stark’s application will be closed.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Douglas Stark, the applicant, sought a remedy for an alleged unfair dismissal from A Plus Plastics Pty Ltd, the respondent. Stark claimed that his dismissal was unjust, alleging that it was due to his protected industrial activities and not for the reasons provided by the respondent. The Fair Work Commission was tasked with determining whether the dismissal was indeed unfair and if Stark’s participation in industrial activities was a contributing factor.

The central legal issue before the Commission was whether Stark's dismissal was unfair within the meaning of the Fair Work Act. Additionally, the Commission needed to assess whether Stark's engagement in protected industrial activities contributed to the decision to terminate his employment. A further consideration was the extent to which Stark complied with the procedural directions issued by the Commission, as this had implications for the admissibility of his application.

In its decision, the Commission noted that Stark had not complied with certain procedural directions, which affected his application's admissibility. Despite this, the Commission examined the merits of the case, finding that the respondent had valid reasons for the dismissal that were unrelated to Stark’s protected activities. The Commission concluded that the dismissal was not unfair, as it was based on legitimate performance-related issues. Consequently, the Commission dismissed Stark's application for an unfair dismissal remedy due to his non-compliance with procedural directions and the lack of evidence supporting the claim of unfair dismissal.

The Fair Work Commission dismissed Douglas Stark’s application for an unfair dismissal remedy and did not grant any relief. The decision emphasised the importance of procedural compliance in such applications and confirmed that the dismissal was justified based on the evidence presented.

Douglas Stark v A Plus Plastics Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established