Mark Duggan v Sidach Pty Ltd

[2014] FWC 2272

[2014] FWC 2272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Duggan
v
Sidach Pty Ltd
(U2014/4399)

COMMISSIONER CRIBB MELBOURNE, 4 APRIL 2014

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

[1] An application, under section 394 of the Fair Work Act 2009 (the Act), was made by Mr Mark Duggan (the Applicant) on 6 February 2014. Mr Duggan’s employment was terminated by Sidach Pty Ltd (the Respondent) on 8 January 2014.

[2] A jurisdictional issue was raised in terms of the application having been lodged outside the statutory time limit and was set down for hearing on Tuesday, 1 April 2014. Mr Duggan was directed to file an outline of submissions and any witness statements and other documentary material he wished to rely on by noon Friday 14 March 2014. Mr Duggan failed to comply with the direction to file material by 14 March 2014.

[3] A message was then left for Mr Duggan by the Fair Work Commission (the Commission), on 18 March 2014, regarding his non-compliance with the directions. An email was sent on Friday 21 March 2014 asking Mr Duggan if he wished to continue with his application. No response was received by the due date - Wednesday 26 March 2014.

[4] The Respondent, on 27 March 2014, made a verbal application under section 399A of the Act to have the application dismissed due to the Applicant's failure to comply with the directions of the Commission. I waved compliance with the Fair Work Rules 2009 and accepted the Respondent's oral application.

[5] On 27 March 2014, correspondence was sent to Mr Duggan directing him to file and serve submissions providing reasons as to why the Commission should not dismiss his application. This material was to be provided by no later than close of business on Thursday 3 April 2014. The letter also advised Mr Duggan that failure to comply with this direction would result in his application being dismissed.

[6] Mr Duggan did not file any material with the Commission.

[7] 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

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

[9] As Mr Duggan did not file any material in opposition to the application to dismiss and has failed to attend a hearing, I have decided to determine the application on the papers.

[10] After considering all the material, I have decided to dismiss Mr Duggan’s application for remedy from unfair dismissal pursuant to section 399A(1)(b) of the Act.

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

 1   PR549362

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<Price code A, PR549360>