Jonathan Graham v Jupiters Limited T/A Jupiters Hotel & Casino

[2015] FWC 4593

[2015] FWC 4593

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Graham
v
Jupiters Limited T/A Jupiters Hotel & Casino
(U2015/7163)

COMMISSIONER WILSON MELBOURNE, 10 JULY 2015

Application for relief from unfair dismissal.

[1] On 27 April 2015, Mr Jonathan Graham made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Graham’s employment had been terminated by Jupiters Limited on 8 April 2015.

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

[3] Mr Graham was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 15 June 2015.

[4] Mr Graham did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Kovacic on 19 June 2015.

[5] Mr Graham did not attend the non compliance hearing. Jupiters Limited made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Graham had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted Jupiters Limited’s oral application.

[6] On 19 June 2015, Mr Graham was sent correspondence informing him of Jupiters Limited’s section 399A application. Mr Graham was directed to file submissions and other documentary material in respect of Jupiters Limited’s application by close of business, on 29 June 2015. Mr Graham was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Graham 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 Graham 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 Graham’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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