Elliot v Trility Waters Pty Ltd

[2016] FWC 68

[2016] FWC 68

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Dean Elliot
v
Trility Pty Ltd T/A Trility
(U2015/11934)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 5 JANUARY 2016
Application for relief from unfair dismissal.

[1]        On 22 September 2015, Mr Dean Elliot made an application for remedy for unfair

dismissal under section 394 of the Fair Work Act 2009. Mr Elliot’s employment had been

terminated by Trility Pty Ltd T/A Trility on 1 September 2015.

[2]        The matter was listed for conciliation on 26 October 2015 however it could not take

place. Consequently, directions were issued and the matter was listed for hearing.

[3]        Mr Elliot was directed to file an outline of submissions, any witness statements and

other documentary material he wished to rely on by noon, on 23 November 2015.

[4]        On 24 November 2015, Trility filed an objection to the application and sought the

dismissal of Mr Elliot’s application as Mr Elliot had failed to comply with the direction of the

Fair Work Commission.

[5]        On 17 December 2015, Trility made an oral application, pursuant to section 399A of

the Act, that the matter be dismissed. I waived compliance with the Fair Work Commission

Rules 2013 and accepted Trility’s oral application.

[6]        On 17 December 2015, Mr Elliot was sent correspondence informing him of Trility’s

section 399A application. Mr Elliot was directed to file submissions and other documentary

material in respect of Trility’s application by close of business, on 28 December 2015. Mr

Elliot was advised that if he failed to comply with this direction, his application would be

dismissed.

[7]        Mr Elliot did not file any material with the Commission.

[2016] FWC 68

[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 Elliot did not file any material in opposition to the application to dismiss, I will

determine the application on the papers.

[11]      After considering all the material, Mr Elliot’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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