Justin Peisley v Fineline Decorators Pty Ltd

[2018] FWC 5606

[2018] FWC 5606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Peisley
v
Fineline Decorators Pty Ltd
(U2018/6148)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 5 SEPTEMBER 2018

Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of the Act.

[1] On 13 June 2018 Mr Justin Peisley made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Peisley said that his employment had been terminated by Fineline Decorators Pty Ltd (Fineline Decorators)on 23 May 2018.

[2] On 9 July 2018, Fineline Decorators filed its Form F3 – Employers response to unfair dismissal application in which it raised two jurisdictional objections to Mr Peisley’s application. Fineline Decorators objected to the application on the basis that Mr Peisley’s employment had not met the minimum employment period and that Mr Peisley had not been dismissed.

[3] The matter was conciliated on 11 July 2018 however was unable to be resolved. The matter was subsequently listed for jurisdictional hearing before me on 31 August 2018 and the parties filed materials in accordance with the directions of the Commission. Mr Peisley sought assistance through the Commission’s Workplace Advice Service and accordingly a consultation was scheduled with Mr Peisley by a law firm at a time convenient to him.

[4] On 31 August 2018, the Commission was informed that Mr Peisley had not attended his Workplace Advice Service consultation and had not responded to subsequent follow up by telephone or email.

[5] Mr Peisley was unable to be contacted at the commencement of the hearing. Several attempts were made to reach Mr Peisley on the mobile telephone number he had provided to the Commission and multiple voice-to-text messages were left requesting an urgent call back. Mr Peisley did not return these calls.

[6] Fineline Decorators made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Peisley’s failure to attend a hearing held by the Commission in relation to his application. I waived compliance with the Fair Work Commission Rules 2013 and accepted Fineline Decorators’ oral application.

[7] Following the hearing, correspondence was sent to Mr Peisley’s nominated email and postal addresses advising him of Fineline Decorator’s s.399A application. Mr Peisley was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 4 September 2018. This correspondence stated that if the Commission did not receive a response, Mr Peisley’s application for relief from unfair dismissal would be dismissed.

[8] To date, Mr Peisley has not filed any material with the Commission. Further calls were made to Mr Peisley in the morning of 5 September 2018 however Mr Peisley did not respond.

[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.

....

(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. As Mr Peisley did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Peisley has failed to respond to numerous attempts made by the Commission to contact him and has provided no explanation to the Commission for his failure to attend the jurisdictional hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Peisley’s application. An order 1 giving effect to this decision will be issued today.

COMMISSIONER

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