Dylan Klye v Digwood Hr Pty Ltd T/A Simmos Spar

[2014] FWC 491

[2014] FWC 491

The attached document replaces the document previously issued with the above code on 23 January 2014.

The paragraph numbering has now been corrected.

Katrina Alviano

Associate to Deputy President Gooley

Dated: 23 January 2014

[2014] FWC 491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dylan Klye
v
Digwood HR Pty Ltd T/A Simmos Spar
(U2013/13181)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 JANUARY 2014

Application for relief from unfair dismissal dismissed.

[1] On 4 September 2013, Mr Dylan Klye made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Klye’s employment had been terminated by Digwood HR Pty Ltd T/A Simmos Spar (Simmos Spar) on 16 August 2013.

[2] The matter was listed for conciliation on 22 October 2013, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Klye was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 2 December 2013.

[4] Mr Klye did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Gooley on 6 December 2013.

[5] Mr Klye did not attend the non compliance hearing. Simmos Spar made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Klye had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Rules 2009 and accepted Simmos Spar’s oral application.

[6] On 6 December 2013, Simmos Spar also filed an objection to the application and sought the dismissal of Mr Klye’s application. Simmos Spar based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the non compliance hearing.

[7] On 6 December 2013, Mr Klye was sent correspondence informing him of the Respondent’s s.399A application. Mr Klye was directed to file submissions and other documentary material in respect of Simmos Spar’s application by close of business, on 20 December 2013. Mr Klye was advised that if he failed to comply with this direction, his application would be dismissed.

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

[12] After considering all the material, Mr Klye’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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