Mark Britt v Melrose Cranes & Rigging Pty Ltd

[2016] FWC 2787

[2016] FWC 2787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Britt
v
Melrose Cranes & Rigging Pty Ltd
(U2015/17009)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 4 MAY 2016

Application for relief from unfair dismissal.

[1] Mr Mark Britt (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 21 December 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that termination of his employment by Melrose Cranes and Rigging Pty Ltd (the Respondent) was unfair.

[2] The matter was listed for conciliation on 15 February 2016 however it could not take place as Mr Britt was unavailable. Consequently, directions were issued and the matter was listed for a hearing.

[3] Mr Britt was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 21 March 2016.

[4] Mr Britt did not comply with this direction and the matter was listed for a non compliance hearing by telephone before Deputy President Kovacic on 1 April 2016.

[5] Mr Britt did not make himself available for the non compliance hearing. Mr Gregg Melrose, on behalf of the Respondent, made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Britt 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 the Respondent’s oral application.

[6] 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.”

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

[8] I will determine the application on the papers.

[9] As Mr Britt has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[10] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Britt has failed to respond to the attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Britt’s application. An order giving effect to this decision will be issued today.

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