John Dernikos v Bethwood Pty Ltd T/A Kingston Funeral Services

[2016] FWC 1545

[2016] FWC 1545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Dernikos
v
Bethwood Pty Ltd T/A Kingston Funeral Services
(U2015/16506)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 MARCH 2016

Application for relief from unfair dismissal.

[1] On 6 December 2015, Mr John Dernikos made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Dernikos’ employment had been terminated by Bethwood Pty Ltd T/A Kingston Funeral Services (Bethwood) on 16 November 2015.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Dernikos was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 22 February 2016.

[4] Mr Dernikos did not comply with this direction.

[5] On 26 February 2016, the Bethwood filed an application under s.399A of the Act and sought the dismissal of Mr Dernikos’ application because Mr Dernikos failed to comply with directions.

[6] On 26 February 2016, Mr Dernikos was sent a copy of Bethwood’s section 399A application and was directed to file submissions and other documentary material in respect of Bethwood’s application by close of business, on 7 March 2016. Mr Dernikos was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Dernikos 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 Dernikos did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] As Mr Dernikos has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Dernikos neither filed any material in support of his application or in opposition to the application to dismiss. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Dernikos’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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