Jeffrey Leak v Brisbane Glass Pty Ltd t/a Brisbane Glass

[2013] FWC 4590

[2013] FWC 4590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Leak
v
Brisbane Glass Pty Ltd t/a Brisbane Glass
(U2013/8494)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 JULY 2013

Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 12 April 2013, an application pursuant to section 394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Jeffrey Leak (the Applicant). The Applicant’s employment had been terminated by Brisbane Glass Pty Ltd T/A Brisbane Glass (the Respondent) on 5 April 2013.

[2] Conciliation was listed for 22 May 2013. The matter did not settle at conciliation. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 17 June 2013.

[4] The Applicant failed to comply with the direction to file material by 17 June 2013 and the matter was listed for a non-compliance hearing before Deputy President Gooley on 28 June 2013.

[5] The Applicant failed to attend the non-compliance hearing on 28 June 2013.

[6] The Respondent, at the non-compliance hearing, made an application under section 399A of the Act to have the application dismissed due the Applicant’s failure to comply with the directions of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[7] On 28 June 2013, correspondence was sent to the Applicant directing him to file and serve submissions, by close of business on 8 July 2013, providing reasons as to why the Commission should not dismiss the application and that failure to comply with this direction would result in his application being dismissed.

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

[9] 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.

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.

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

[11] As the Applicant did not file any material in opposition to the application to dismiss and has failed to attend a hearing, I have decided to determine the application on the papers.

[12] After considering all the material, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal pursuant to section 399A(1)(a) and (b) of the Act. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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