Eric Kesper v WA Freight Group

[2016] FWC 8754

[2016] FWC 8754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eric Kesper
v
WA Freight Group
(U2016/12357)

COMMISSIONER CIRKOVIC MELBOURNE, 5 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 10 October 2016, Mr Eric Kesper (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by WA Freight Group (Respondent). The Applicant stated in his application that he began working for the Respondent on 1 March 2016 and was dismissed on 10 October 2016. 1 In its response the Respondent stated that the Applicant’s employment began on 6 July 2016.2

[1] The matter was listed for conciliation on 14 November 2016; however the Applicant failed to participate. The conciliator attempted to contact the Applicant via telephone and text message several times that day. The Commission did not receive a response from the Applicant. The conciliator subsequently wrote to the Applicant requesting that he respond to the Commission within 48 hours if he wished to proceed to another conciliation. The Applicant did not respond.

[2] The matter was listed for jurisdictional hearing and directions were issued on 21 November 2016.

[3] On 22 November 2016, the Respondent sent correspondence to the Commission requesting the dismissal of the application pursuant to section 399A of the Act. The Applicant was copied into the correspondence.

[4] On 23 November 2016, correspondence was sent to the parties providing the Applicant 7 days to respond with submissions as to why his Application should not be dismissed. The Commission advised that if no response was received within this time frame his application would be dismissed.

[5] No response was received by the Applicant within the 7 days provided for.

[6] 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.”

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

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

[9] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has provided no explanation for his failure to comply with directions. He 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 the application. An order giving effect to this decision will be issued today.

COMMISSIONER

 1   Form F2 – Unfair Dismissal Application, lodged 10 October 2016, p.2.

 2   Form F3 – Employer Response to Unfair Dismissal Application, lodged 8 November 2016, p.3.

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