Matt Gibbson v Scaffold Logistics Pty Ltd

[2015] FWC 5787

[2015] FWC 5787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matt Gibbson
v
Scaffold Logistics Pty Ltd
(U2015/5356)

COMMISSIONER WILSON MELBOURNE, 24 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 12 May 2015, Mr Matt Gibbson made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Gibbson’s employment had been terminated by Scaffold Logistics Pty Ltd on 21 April 2015.

[2] The matter was listed for conciliation on 1 June 2015 and 16 June 2015, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Gibbson was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 13 July 2015.

[4] Mr Gibbson did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 31 July 2015.

[5] Mr Gibbson did not attend the non compliance hearing. Scaffold Logistics Pty Ltd made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Gibbson had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Scaffold Logistics Pty Ltd’s oral application.

[6] On 6 August 2015, Mr Gibbson was sent correspondence informing him of Scaffold Logistics Pty Ltd’s section 399A application. Mr Gibbson was directed to file submissions and other documentary material in respect of Scaffold Logistics Pty Ltd’s application by close of business, on 17 August 2015. Mr Gibbson was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Gibbson did not file 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] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[11] After considering all the material, Mr Gibbson’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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