Jay Leibinger v Feral Metal Pty Ltd

[2016] FWC 48

[2016] FWC 48

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jay Leibinger
v
Feral Metal Pty Ltd
(U2015/10351)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 2 September 2015, Mr Jay Leibinger made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] The matter was listed for conciliation on 21 September 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Leibinger was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 December 2015.

[4] Mr Leibinger did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 18 December 2015.

[5] Mr Leibinger did not attend the non compliance hearing. Feral Metal made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Leibinger had failed to comply with the direction of the Fair Work Commission. Commissioner Roe waived compliance with the Fair Work Commission Rules 2013 and accepted Feral Metal’s oral application.

[6] On 18 December 2015, Mr Leibinger was sent correspondence informing him of Feral Metal’s section 399A application. Mr Leibinger was directed to file submissions and other documentary material in respect of Feral Metal’s application by close of business, on 29 December 2015. Mr Leibinger was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Leibinger did not file any material with the Commission.

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

DEPUTY PRESIDENT

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