Michael McCulloch v Victoria Police

[2015] FWC 6016

[2015] FWC 6016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael McCulloch
v
Victoria Police
(U2015/7741)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 18 May 2015, Mr Michael McCulloch made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr McCulloch’s employment had been terminated by Victoria Police on 15 April 2015.

[2] Directions were issued and the matter was listed for hearing.

[3] Mr McCulloch was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 9 June 2015. Mr McCulloch did not comply with this direction.

[4] On 22 June 2015, Victoria Police filed an application under section 399A of the Act that the matter be dismissed as Mr McCulloch failed to comply with a direction of the Fair Work Commission (the Commission).

[5] On 24 June 2015, Mr McCulloch wrote to the Commission advising that he would hand deliver the required paper work on 26 June 2015.

[6] There was no material filed in the Commission on 26 June 2015.

[7] On 26 June 2015, a voicemail was left for Mr McCulloch to telephone the Commission.

[8] On 26 June 2015, Mr McCulloch was sent correspondence informing him of Victoria Police’s section 399A application. Mr McCulloch was directed to file submissions and other documentary material in respect of Victoria Police’s application by close of business, on 3 July 2015. Mr McCulloch was advised that if he failed to comply with this direction, his application would be dismissed.

[9] On 29 June 2015, Mr McCulloch emailed the Commission, advising that he was unable to get his paperwork from the Victoria Police Association (who Mr McCulloch listed as his representative on his application) and so could not deliver any paperwork to the Commission.

[10] On 9 July 2015, Mr McCulloch advised the Commission that he still had not obtained his paperwork. Mr McCulloch was advised he had not responded to the correspondence of 26 June 2015.

[11] On 9 July 2015, the Victoria Police Association advised the Commission that they had a letter for Mr McCulloch to collect, however, he had not done so. They also advised that generally, they do not represent parties at the Commission, however, that would be confirmed in due course.

[12] To date, Mr McCulloch has not filed any material with the Commission.

[13] 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.

[14] I am satisfied that Victoria Police’s objection filed on 22 June 2015 is an application to have the matter dismissed for Mr McCulloch’s failure to comply with a direction.

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

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

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

DEPUTY PRESIDENT

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