Harry Milochis v Detmold Packaging Pty Ltd

[2013] FWC 3647

[2013] FWC 3647

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harry Milochis
v
Detmold Packaging Pty Ltd
(U2013/6848)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 6 JUNE 2013

Application for relief from unfair dismissal - s.399A - application dismissed.

[1] In a telephone conference convened today I dismissed the unfair dismissal application made by Mr Milochis. I have set out the reasons for this decision.

[2] Mr Milochis’ unfair dismissal application was lodged against Detmold Packaging Pty Ltd (Detmold) on 25 February 2013. It was the subject of telephone conciliation and, on 19 March 2013 an agreed position was reached. Mr Milochis did not complete and return the Deed of Settlement or lodge a Notice of Discontinuance despite material being sent to him for this purpose on two separate occasions.

[3] On 30 April 2013 Detmold lodged an application pursuant to s.399A of the Act and sought that Mr Milochis' application was dismissed. The matter was the subject of a telephone conference on 27 May 2013. Mr Milochis did not appear at this conference and, when contacted by my Associate, indicated that he did not intend to appear. He was asked to lodge a Notice of Discontinuance.

[4] Following this conference I issued directions which relevantly stated:

“[3] The s.399A application has now been relisted for a further telephone conference on 6 June 2013. In the event that the Commission receives a Notice of Discontinuance from Mr Milochis by that date, this conference will be cancelled.

[4] Alternatively, if no Notice of Discontinuance is received by that date, and Mr Milochis does not participate in that conference, or advice of his position is not received before that conference, I intend to grant the s.399A application and dismiss Mr Milochis’ unfair dismissal application on that day.

[5] No Notice of Discontinuance has been received. Mr Milochis did not appear at the conference convened today.

[6] Section 399A states:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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] Mr Milochis has failed to participate in two successive conferences. He has failed to comply with my directions and I am satisfied that he has failed to lodge a Notice of Discontinuance. Mr Milochis' unfair dismissal application has been dismissed accordingly. An Order [PR537656] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

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<Price code A, PR537655>