Mark Fell v Woolworths Limited

[2016] FWC 3218

[2016] FWC 3218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Fell
v
Woolworths Limited
(U2016/4423)

COMMISSIONER WILSON MELBOURNE, 23 MAY 2016

Application for relief from unfair dismissal.

[1] On 9 February 2016, Mr Mark Fell made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Fell’s employment had been terminated by Woolworths Limited on 19 January 2016.

[2] The matter was listed for conciliation on 23 March 2016 and 19 April 2016 however the conciliations could not take place. Consequently, directions were issued and the matter was listed for hearing on 6, 7, and 8 July 2016 at 10.00 am.

[3] Mr Fell was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 16 May 2016.

[4] On 5 May 2016, Woolworths filed an application pursuant to section 399A of the Act, that the matter be dismissed as Mr Fell:

(a) had not been responsive to the Commission;

(b) had not made genuine attempts to pursue his unfair dismissal application since the application was lodged.

[5] On 6 May 2016, Mr Fell was sent correspondence informing him of Woolworths’ section 399A application. Mr Fell was directed to file submissions and other documentary material in respect of Woolworths’ application by close of business, on 16 May 2016. Mr Fell was advised that if he failed to comply with this direction, his application would be dismissed.

[6] On 11 May 2016, Mr Fell telephoned the Commission requesting the hearing times be changed from 10.00 am to 2.00 pm. He was advised that that was not possible. Mr Fell was reminded that he was due to respond to the section 399A application by Monday 16 May 2016 otherwise he ran the risk of his application being dismissed.

[7] Mr Fell has not filed 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] I am satisfied that Woolworths’s objection filed on 5 May 2016 is an application to have the matter dismissed for Mr Fell’s failure to respond to the Commission or make any genuine attempts to pursue his unfair dismissal application since the application was lodged.

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

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

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Fell has failed to respond to the many 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 Fell’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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