Mark McEachern v Teamforce Cleaning Services Pty Ltd

[2016] FWC 406

[2016] FWC 406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark McEachern
v
Teamforce Cleaning Services Pty Ltd
(U2015/8681)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 19 June 2015, Mr Mark McEachern made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr McEachern’s employment had been terminated by Teamforce Cleaning Services Pty Ltd on 1 June 2015.

[2] The matter was listed for conciliation on 13 November 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr McEachern was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 28 December 2015.

[4] Commission staff attempted to contact Mr McEachern regarding the filing of his materials on several occasions, including leaving voice messages on 30 December 2015 and 4 January 2016. A further voice message was left for Mr McEachern on 4 January 2016 advising that should he not contact the Commission the matter would be listed for a non compliance hearing.

[5] An amended notice of listing was issued to the parties on 5 January 2016 listing the matter for a non compliance hearing at 9.00am on 8 January 2016 before Commissioner Johns.

[6] On 5 January 2016 Mr McEachern contacted the Commission and was advised of the non compliance hearing.

[7] Mr McEachern did not attend the non compliance hearing. Teamforce Cleaning made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr McEachern had failed to comply with the direction of the Fair Work Commission. Commissioner Johns waived compliance with the Fair Work Commission Rules 2013 and accepted Teamforce Cleaning’s oral application.

[8] On 8 January 2016, Mr McEachern was sent correspondence informing him of Teamforce Cleaning’s section 399A application. Mr McEachern was directed to file submissions and other documentary material in respect of Teamforce Cleaning’s application by close of business, on 15 January 2016. Mr McEachern was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr McEachern did not file any material with the Commission.

[10] 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.

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

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr McEachern 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 McEachern’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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