Michael Uthe v Flawless Constructions Group Pty Ltd

[2015] FWC 6010

[2015] FWC 6010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Uthe
v
Flawless Constructions Group Pty Ltd
(U2015/4039)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 17 March 2015, Mr Michael Uthe made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Uthe’s employment had been terminated by Flawless Constructions Group Pty Ltd on 6 February 2015.

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

[3] Mr Uthe was directed to file an outline of argument, statement of evidence and other documentary material he wished to rely on by noon, on 25 May 2015.

[4] Mr Uthe did not comply with this direction.

[5] On 5 June 2015, Flawless Constructions Group Pty Ltd filed an objection to the application and sought the dismissal of Mr Uthe’s application on the ground that Mr Uthe had failed to comply with directions.

[6] On 11 June 2015, Mr Uthe was sent correspondence informing him of Flawless Constructions Group Pty Ltd’s section 399A application. Mr Uthe was directed to file submissions and other documentary material in respect of Flawless Constructions Group Pty Ltd’s application within 10 days of the date of the letter. Mr Uthe was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Uthe 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] I am satisfied that Flawless Constructions Group Pty Ltd’s objection filed on 5 June 2015 is an application to have the matter dismissed for Mr Uthe’s failure to comply with directions.

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

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

[12] After considering all the material, Mr Uthe’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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