Jason Rogers v Daac Holdings Pty Ltd

[2021] FWC 6185

[2021] FWC 6185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Rogers
v
Daac Holdings Pty Ltd
(U2021/6959)

COMMISSIONER WILSON MELBOURNE, 22 OCTOBER 2021

Application for an unfair dismissal remedy

[1] On 6 August 2021 Jason Rogers made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Rogers employment had been terminated by Daac Holdings Pty Ltd on 16 July 2021.

[2] The matter was listed for conciliation on 2 September 2021. This conciliation was adjourned upon the request of Mr Rogers due to ill health.

[3] The Commission made multiple requests that a medical certificate be provided to support this basis for adjournment and assist with the rescheduling of conciliation. Mr Rogers did not respond to these requests.

[4] The matter was relisted for conciliation on 27 September 2021. Multiple attempts were made by the Commission to confirm Mr Rogers’ contact information for the conciliation; however, Mr Rogers was non-responsive. Mr Rogers did not attend the scheduled conciliation.

[5] The matter was listed for a Mention/Directions Hearing via telephone on 8 October 2021. Multiple attempts were made to contact Mr Rogers to confirm his attendance. Mr Rogers did not attend the scheduled Mention/Directions Hearing.

[6] Daac Holdings made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Rogers had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Rules 2009 and accepted Daac Holdings’ oral application.

[7] On 8 October 2021 Mr Rogers was sent correspondence informing him of Daac Holdings’ s.399A application. Mr Rogers was directed to file submissions and other documentary material in respect of Daac Holdings’ application by 15 October 2021. Mr Rogers was advised that if he failed to comply with this direction, his application would be dismissed.

[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 Rogers 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 Roger’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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