Kristian Daely v Printco (Aust) Pty Ltd T/A Printco

[2019] FWC 6344

[2019] FWC 6344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristian Daely
v
Printco (Aust) Pty Ltd T/A Printco
(U2019/6070)

COMMISSIONER BISSETT MELBOURNE, 12 SEPTEMBER 2019

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 1 June 2019 Mr Kristian Daely (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Mr Daely said that his employment had been terminated by Printco (Aust) Pty Ltd T/A Printco (Respondent) on 10 May 2019.

[2] On 24 June 2019, the Respondent filed its Form F3 – Employer response to unfair dismissal application in which it raised two jurisdictional objections to Mr Daely’s application. The Respondent objected on the basis that Mr Daely’s application was lodged out of time and that Mr Daely’s dismissal was a case of genuine redundancy

[3] The matter was listed for conciliation on 11 July 2019 however the matter did not settle. Accordingly, on 15 July 2019 directions were issued to the parties and the matter was listed for a Jurisdiction (Extension of Time) Conference/Hearing for 23 August 2019. Mr Daely was directed to file his Extension of Time material by no later than noon on Wednesday 31 July 2019 and the Respondent was directed to file its material by no later than noon on Friday 16 August 2019.

[4] Mr Daley wrote to the Commission on 22 July 2019 requesting an extension of time to file his material. He said that “23^rd of August or later, in my opinion, being a reasonable date or timeframe to have this completed.”

[5] On 24 July 2019 Amended Directions were issued to the parties amending the hearing date and extending the time for filing materials. Mr Daely was directed to file his material by no later than noon on Friday 23 August 2019 and the Respondent was directed to file its material by no later than noon on Monday 9 September 2019.

[6] No material was received from Mr Daely by noon on 23 August 2019.

[7] On 23 August 2019 at 3.11 pm the Commission sent an email to Mr Daely reminding him that his materials were overdue and requesting that he contact the Commission as soon as possible. Mr Daely was also advised that the matter was at risk of being listed for a non-compliance hearing. Mr Daely did not respond to this correspondence.

[8] On 27 August 2019 the Commission unsuccessfully attempted to telephone Mr Daely in relation to his overdue material. A voicemail message was left for Mr Daely advising him that his material was overdue and that his matter was at risk of being listed for a non-compliance hearing. Mr Daely was also urged to call the Commission. Mr Daely did not return the Commission’s call.

[9] On 28 August 2019 the Commission again sent an email Mr Daely asking him to contact the Commission and advised him that his matter was at risk of being listed for a non-compliance hearing.

[10] As no response was received, a Notice of Listing was sent to the parties later that day scheduling the matter for a non-compliance hearing on 30 August 2019. The Notice of Listing was sent to Mr Daely’s nominated email address.

[11] The non-compliance hearing proceeded before Deputy President Masson on 30 August 2019. Mr Daely did not appear. The Respondent made an oral application that the matter be dismissed pursuant to s.399A of the Fair Work Act 2009 (FW Act) due to Mr Daely’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[12] Following the non-compliance hearing, correspondence was sent to Mr Daely’s email address advising him of the s.399A application. Mr Daely was directed to file submissions in respect of the s.399A application by no later than 4:00pm on Monday 9 September 2019. The correspondence warned Mr Daely that if the Commission did not receive a response his application for relief from unfair dismissal may be dismissed. No response was received.

[13] To date, Mr Daely has not filed any material with the Commission.

[14] Section 399A of the FW 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.

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

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

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Daely has failed to respond to numerous attempts made by the Commission to contact him. Mr Daely has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Daely’s application.

[18] An order 1 giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   PR712339.