Elliot v Trility Waters Pty Ltd Summary

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dean Elliot, the applicant, sought relief from unfair dismissal against Trility Pty Ltd T/A Trility, the respondent, under section 394 of the Fair Work Act 2009. The application was made following the termination of Mr Elliot’s employment by the respondent on 1 September 2015. The matter was initially listed for conciliation on 26 October 2015, but this did not proceed. The Deputy President subsequently issued directions, requiring Mr Elliot to file an outline of submissions and other documentary material by 23 November 2015. Despite this, the respondent filed an objection to Mr Elliot's application, alleging that he had failed to comply with the direction. The respondent later made an oral application under section 399A of the Act for the dismissal of Mr Elliot’s application due to his non-compliance. The Deputy President accepted the respondent's application and directed Mr Elliot to file submissions in response by 28 December 2015, warning that failure to do so would result in the dismissal of his application.

The central legal issue before the Deputy President was whether Mr Elliot's failure to comply with the directions issued by the Fair Work Commission warranted the dismissal of his application under section 399A of the Act. This provision allows for the dismissal of an application if the Commission is satisfied that the applicant has unreasonably failed to comply with a direction or order of the Commission. Additionally, the Deputy President needed to determine whether Mr Elliot’s non-compliance was indeed unreasonable and whether the dismissal of his application was justified under the circumstances. The Deputy President also had to consider whether the failure to comply with the direction constituted a valid ground for dismissal of the application.

In considering the matter, the Deputy President noted that Mr Elliot had not filed any submissions or documentary material in response to the respondent's application to dismiss. Given this, the Deputy President determined the application on the papers. The Deputy President concluded that Mr Elliot's failure to comply with the direction was unreasonable and found that his application for remedy from unfair dismissal should be dismissed under section 399A of the Act. The Deputy President issued an order dismissing Mr Elliot’s application, and noted that an order giving effect to this decision would be issued on the same day.

Elliot v Trility Waters Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established