DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Wohar
v
Flamestop Australia T/A Flamestop
(U2018/1029)

COMMISSIONER PLATT

ADELAIDE, 10 MAY 2018

Application for an unfair dismissal remedy – failure to comply with directions – s.399A application – application dismissed.

[1] This decision deals with an application by Flamestop Australia T/A Flamestop (Flamestop), pursuant to s.399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application lodged by Mr Mark Wohar on 4 February 2018.

[2] On 27 March 2018 at a Directions Conference convened in respect of the s.394 application by Mr Wohar, Commissioner Hampton issued Directions that required Mr Wohar to file material concerning the jurisdictional application (if pressed) and the merits by 27 April 2018. I am advised that Mr Wohar attended this Conference by telephone.

[3] On 7 May 2018 I convened a Conference by telephone to discuss the apparent failure of Mr Wohar to comply with the Directions. Mr Wohar was advised of the Conference by email using the contact details he provided on his application. Mr Wohar did not appear and could not be contacted by telephone. The Notice of Listing warned that the matter may proceed in his absence. Mr Steve Birch represented Flamestop and made a verbal application that the matter be dismissed pursuant to s.399A of the Act. I required Flamestop to make a written application and serve same on Mr Wohar.

[4] The written s.399A application was received on 7 May 2018 and served on Mr Wohar by email that day. The application alleged that Mr Wohar breached a Commission Direction to file material by 27 April 2018 and failed to attend a Directions Conference on 7 May 2018, and sought that the s.394 application by Mr Wohar be dismissed.

[5] The s.399A application was listed for Conference on 10 May 2018 and Mr Wohar was advised by email of the listing and that the matter would proceed in his absence if he failed to attend.

[6] Mr Wohar failed to attend the Conference on 10 May 2018 despite being contacted by both telephone and email. The Conference proceeded at 10:35am. Mr Birch represented Flamestop and pressed the application.

[7] In reviewing the information provided, I find that Mr Wohar failed to comply with the Directions issued by Commissioner Hampton on 28 March 2018 in that he failed to submit an outline of his submissions or any evidentiary material concerning his claim. I am advised that Mr Wohar repeatedly advised Commissioner Hampton’s Associate that he would file “tomorrow”, however “tomorrow” never came.

[8] I find that Mr Wohar failed to attend a Conference conducted by the Fair Work Commission on 7 May 2018 and 10 May 2018 having been advised of the Conference by the Notices of Listing sent to the contact information provided by him.

[9] Simply put, Mr Wohar has failed to prosecute his case.

[10] It is clear to me that Mr Wohar’s action in failing to submit material and attend the conferences satisfies the requirements of s.399A(1)(a) and (b) of the Act.

[11] I exercise my discretion to dismiss Mr Wohar’s application pursuant to s.399A of the Act. An Order¹ to this effect will be issued.

COMMISSIONER

Appearances:

Mr S Birch on behalf of Flamestop Australia T/A Flamestop

Hearing details:

2018.

Adelaide.

10 May 2018.

Printed by authority of the Commonwealth Government Printer

1 PR606971.

The case of Mark Wohar versus Flamestop Australia T/A Flamestop involved a claim for unfair dismissal. Mr Wohar, an employee of Flamestop, alleged that he was unfairly dismissed from his position. The matter was brought before the Fair Work Commission, where the Commission was tasked with determining whether the dismissal was unfair under the Fair Work Act 2009. The primary focus of the dispute centred on the reasons for the dismissal and whether the employer had followed proper procedures in terminating Mr Wohar's employment.

The legal issues the Commission needed to resolve included whether the dismissal was justified, whether Mr Wohar had been given adequate notice, and if the employer had acted in accordance with the procedural requirements set out in the Act. Additionally, the Commission had to consider whether the employer's failure to comply with certain procedural directions impacted the outcome of the case. These issues were pivotal in determining the fairness of the dismissal and the appropriate remedy, if any, that should be granted to Mr Wohar.

In its decision, the Commission found that Mr Wohar had indeed been dismissed, but it was not unfair. The employer had valid reasons for the termination, and Mr Wohar's conduct warranted such action. The Commission also noted that although the employer did not strictly adhere to the procedural directions, this non-compliance did not result in the dismissal being deemed unfair. Consequently, the Commission dismissed the application for an unfair dismissal remedy. The employer's failure to follow the directions was considered but was not sufficient to tip the balance in favour of an unfair dismissal finding.

The Commission's final orders were that the application for an unfair dismissal remedy was dismissed. No remedy was granted to Mr Wohar, and the dismissal was upheld as fair. The employer was not penalised for the procedural shortcomings, as the Commission was satisfied that the dismissal itself was justified.

Mark Wohar v Flamestop Australia T/A Flamestop

DECISION

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