Morphett v Coles Supermarkets Australia Pty Ltd

[2016] FWC 2975

[2016] FWC 2975

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Daniel Morphett
v
Coles Supermarkets Australia Pty Ltd T/A Coles Supermarket
(U2016/34)
COMMISSIONER WILSON	MELBOURNE, 12 MAY 2016
Application for relief from unfair dismissal.

[1]        On 4 January 2016, Mr Daniel Morphett made an application for remedy for unfair

dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Morphett says his

employment had been terminated by Coles Supermarket on 11 December 2015.

[2]        The matter was listed for conciliation on two occasions, however they could not take

place. Consequently, directions were issued and the matter was listed for hearing.

[3]        Mr Morphett was directed to file an outline of submissions, witness statements and

other documentary material he wished to rely on by noon, on 4 April 2016 and 26 April 2016

respectively in relation to the merits of his application and the jurisdictional objection raised

by Coles.

[4]        On 11 April 2016, the Coles filed an objection to the application and sought the

dismissal of Mr Morphett’s application. Coles based their objection on the following grounds

that Mr Morphett:

a)	did not attend two conciliation conferences;
b)	has not filed any materials, in accordance with theDirections issued by the

Commission; and

c) does not appear to be pursing the application.

[5]        On 20 April 2016, Mr Morphett was sent correspondence informing him of Coles’

section 399A application. Mr Morphett was directed to file submissions and other

documentary material in respect of Mr Morphett’s application by close of business, on 29

April 2016. Mr Morphett was advised that if he failed to comply with this direction, his

application would be dismissed.

[6]        Mr Morphett did not file any material with the Commission.

[7]        Section 399A of the Act provides as follows:

[2016] FWC 2975

“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.”

[8]        Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act.

[9]        As Mr Morphett did not file any material in opposition to the application to dismiss, I

will determine the application on the papers.

[10]      Mr Morphett has provided no explanation for his failure to comply with directions, I

find that his failure was unreasonable.

[11]      The power to dismiss an application, if the non-compliance was unreasonable, is

discretionary. Mr Morphett has failed to respond to attempts by the Commission to contact

him and he has shown no willingness to prosecute his case. In those circumstances, I will

exercise my discretion and dismiss Mr Morphett’s application. An order giving effect to this

decision will be issued today.

COMMISSIONER

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