Mark Wohar v Flamestop Australia T/A Flamestop

[2018] FWC 2622

[2018] FWC 2622

FAIR WORK COMMISSION

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

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1 PR606971.