Graham Whyte v Flexitech Holdings Pty Ltd T/A Flexitech

[2019] FWC 3223

[2019] FWC 3223

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graham Whyte
v
Flexitech Holdings Pty Ltd T/A Flexitech
(U2019/777)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2019

Application for an unfair dismissal remedy.

[1] On 25 January 2019, Mr Graham Whyte made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Whyte said he was notified his employment had been terminated by Flexitech Holdings Pty Ltd T/A Flexitech (Flexitech) on 22 January 2019.

[2] The matter was initially listed for conciliation on 26 February 2019, however, due to conciliator unavailability, the Commission sought to reschedule the conciliation. Mr Whyte and Flexitech provided their availability and the matter was re-listed for 20 March 2019, a date both parties advised they could attend. Ultimately, the conciliation did not proceed on 20 March 2019 as Mr Whyte could not be contacted.

[3] On 27 March 2019, a Notice of Listing was sent to the parties scheduling the matter for Arbitration Conference/Hearing on 3-4 June 2019. Directions were also issued for the filing of material. Mr Whyte was directed to file his material by no later than noon on 15 April 2019 and Flexitech was to file its material by no later than noon on 7 May 2019.

[4] No material was received from Mr Whyte by noon on 15 April 2019.

[5] On 15 and 16 April 2019, attempts were made to contact Mr Whyte via telephone regarding his overdue material. Voicemail messages were left on each occasion seeking his return call. Following the latter phone call, the Commission sent email correspondence to Mr Whyte advising that if no extension request or submissions were received by 4.00pm on 16 April 2019, the matter would be listed for a non-compliance hearing on 18 April 2019.

[6] On 17 April 2019, a Notice of Listing was sent to the parties via email, scheduling the matter for a non-compliance hearing the following day.

[7] The non-compliance hearing proceeded before me on 18 April 2019. Mr Whyte could not be contacted. Flexitech made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Whyte’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Flexitech’s oral application.

[8] Following the non-compliance hearing, correspondence was sent to Mr Whyte’s nominated email and postal addresses advising him of Flexitech’s s.399A application. Mr Whyte was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4.00pm on 30 April 2019. The correspondence also noted that if the Commission did not receive a response, Mr Whyte’s application for relief from unfair dismissal may be dismissed.

[9] To date, Mr Whyte has not filed any material with the Commission.

[10] 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.

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

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application and advising his availability to attend conciliation, Mr Whyte has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 18 April 2019, which took place over three weeks ago. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Whyte’s application. This ends his unfair dismissal application.

[14] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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