Kraig Butler v Master Builders' Association of New South Wales

[2014] FWC 9236

[2014] FWC 9236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kraig Butler
v
Master Builders’ Association of New South Wales
(U2014/12400)

COMMISSIONER WILSON MELBOURNE, 22 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 9 September 2014, Mr Kraig Butler made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Butler’s employment had been terminated by Master Builders’ Association of New South Wales (MBA) on 27 August 2014.

[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 Butler was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 28 November 2014.

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

[5] On 4 December 2014, MBA filed an application which sought to have Mr Butler’s application dismissed pursuant to s.399A. MBA based their objection as Mr Butler failed to comply with directions of the Commission.

[6] On 4 December 2014, Mr Butler was sent correspondence informing him of MBA’s section 399A application. Mr Butler was directed to file submissions and other documentary material in respect of MBA’s application by close of business, on 15 December 2014. Mr Butler was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Butler 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 Butler 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 Butler’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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