Hans Oerlemans v Shahin Enterprises Pty Ltd T/A Peregrine Corporation

[2015] FWC 5925

[2015] FWC 5925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hans Oerlemans
v
Shahin Enterprises Pty Ltd T/A Peregrine Corporation
(U2015/7917)

COMMISSIONER LEE MELBOURNE, 28 AUGUST 2015

Application for relief from unfair dismissal - application by respondent pursuant to s.399A - application dismissed.

[1] On 25 May 2015, Mr Hams Oerlemans (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal. The application was made pursuant to section 394 of the Fair Work Act 2009 (the Act). The Application is made against Shahin Enterprises Pty Ltd T/A Peregrine Corporation (the Respondent).

[2] The matter was listed for conciliation on 18 June 2015 however it could not take place. As a consequence, the matter was referred for arbitration before a member of the Commission.

[3] The matter was allocated to Senior Deputy President O’Callaghan. The Senior Deputy President listed the matter for Directions conference by Telephone on 8 July 2015. Directions for filing were set and the matter was listed for hearing on 18 and 19 August before me in Adelaide.

[4] The Applicant did not comply with the directions for filing and the matter was listed for a non compliance hearing by telephone before me on 13 August 2015. The Notice of Listing was sent to the Applicant and his nominated representative, Mr Bassett of Bassett-Carr & Associates.

[5] My associate attempted to contact the Applicant by telephone on 12 August to explain the non-compliance hearing but was unable to reach him or leave a voicemail message. My associate made further unsuccessful attempts to contact the Applicant and his representative by telephone the morning of the hearing. A further follow up email was sent to the Applicant and his representative around midday on 13 August, however no response was received.

[6] Shortly after midday, my associate made contact with Mr Bassett of Bassett-Carr & Associates. Mr Bassett informed my associate that he no longer acted for the Applicant.

[7] The Applicant could not be contacted at the time of the non compliance hearing. Mr Krips of EMA Legal attended the non compliance hearing seeking permission to appear on behalf of the Respondent.

[8] Mr Krips was granted permission to appear and made an oral application, pursuant to s.399A of the Act that the matter be dismissed as the Applicant had failed to comply with the direction of the Fair Work Commission. I determined to waive compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[9] On 14 August 2015, the Applicant was sent correspondence informing him of the section 399A application. The Applicant was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 21 August 2015. The Applicant was advised that if he failed to comply with this direction, his application would be dismissed.

[10] The Applicant did not file any material with the Commission.

[11] 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.

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

[13] As the Applicant did not file any material in opposition to the application to dismiss pursuant to s.399A of the Act, I will determine the application on the papers.

[14] After considering all the material, the Applicant’s application for remedy from unfair dismissal is dismissed. An order 1 giving effect to this decision will be issued today.

COMMISSIONER

 1   PR571278

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