Kristopher Miitel v Deepcore T/A Deepcore Drilling
[2019] FWC 6872
•4 OCTOBER 2019
| [2019] FWC 6872 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kristopher Miitel
v
Deepcore T/A Deepcore Drilling
(U2019/8243)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 4 OCTOBER 2019 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of the Act.
This matter was listed for non-compliance hearing before me on 4 October 2019. At the conclusion of the hearing, I dismissed the application as I was persuaded that I should exercise my discretion under s.399A of the Fair Work Act 2009 (the Act). My written reasons for my decision are provided below.
On 25 July 2019, Mr Kristopher Miitel (the Applicant) made an application to Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Act. The Respondent to the application is Deepcore T/A Deepcore Drilling.
The application was listed for conciliation on 26 August 2019 however the Applicant failed to attend. On 27 August 2019, the Respondent filed in the Commission an application pursuant to s.399A of the Act that the matter be dismissed due to Mr Miitel’s failure to attend the telephone conciliation.
On 9 September 2019, directions were issued by the Commission requiring the Applicant to file in the Commission and serve on the Respondent an outline of argument, witness statements and documents in support of his application by no later than noon on Monday 30 September 2019.
Correspondence was also sent to the Applicant’s nominated email and postal addresses on 9 September 2019 advising him of Deepcore’s s.399A application. Mr Miitel was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 16 September 2019. This correspondence stated that if the Commission did not receive a response, Mr Miitel’s application for relief from unfair dismissal would likely be dismissed without further notice.
Mr Miitel did not provide a response to this correspondence, nor did he file materials in accordance with the directions of the Commission in support of his substantive application. The matter was listed for a non-compliance hearing before me on Friday 4 October 2019.
Mr Miitel was unable to be contacted for this hearing. Several voice-to-text messages were left for Mr Miitel advising that the non-compliance hearing was due to commence and requesting an urgent call back. Mr Miitel did not return any of these calls.
The hearing proceeded in the absence of the Applicant and the Respondent pressed their s.399A application.
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.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Miitel 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 comply with the directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Miitel’s application. An order[1] giving effect to this decision will be issued today.
COMMISSIONER
Appearances:
P. Robertson for the Respondent.
Hearing details:
2019
4 October (telephone hearing)
<PR713033>
[1] PR713034
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