Mr Beau Tassie v Rotafab Pty Ltd

[2024] FWC 3342

[2024] FWC 3342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Beau Tassie
v

Rotafab Pty Ltd

(U2024/11692)

COMMISSIONER WILSON MELBOURNE, 2 DECEMBER 2024

Application for an unfair dismissal remedy - Applicant non-compliant with Directions of the Commission - s.399A application - unfair dismissal application dismissed.

1. On 30 September 2024, Mr Beau Tassie (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Rotafab Pty Ltd (the Respondent). Mr Tassie’s employment had been terminated on Friday, 6 September 2024.

1. Section 394(2) of the Act requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates provided in the Form F2 application, Mr Beau Tassie’s application was made outside of the statutory time limit, with it having been made three days after the expiry of the 21-daytime period allowed for by the Act.

1. Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Tassie’s application.

1. The Respondent filed a Form F3 Employer’s Response Form on 8 October 2024, raising a jurisdictional objection that the application was filed out of time.

1. Directions were issued to parties on Tuesday, 8 October 2024. The Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material he intended to rely on in support of an extension of time by 4.00PM Wednesday, 23 October 2024.

1. No submissions were filed by the Applicant by 4.00PM Wednesday, 23 October 2024. On 28 October 2024, my Chambers wrote to Mr Tassie advising that his application was at risk of being listed for non-compliance and directed him to file his materials by close of business 29 October, 2024.

1. On 31 October 2024, my Chambers wrote to Mr Tassie again, notifying him that the matter had been listed for Non-Compliance Hearing on 4 November and that, if he did not attend the Hearing and explain his non-compliance with the Directions, his application may be dismissed under s.399A of the Fair Work Act.

1. The Applicant did not respond to either of the emails sent to him by my Chambers and did not attend the Non-Compliance Hearing on 4 November.

1. On 4 November, my Chambers called the Applicant twice prior to the beginning of the Non-Compliance Hearing on his number supplied in his F2 Application. The Applicant did not answer the calls.

1. During the Non-Compliance Hearing the Respondent made a s.399A application.

1. After the Non-Compliance Hearing on 4 November 2024, a further email was sent to the Applicant informing him of the s.399A application made by the Respondent at the Non-Compliance Hearing. The Applicant was directed in this email to file submissions with the Commission and the Respondent as to why the Commission should not dismiss his application, by 4:00PM Friday, 8 November 2024. The Applicant did not file any material or make any contact with my Chambers or the Respondent in relation to this direction.

1. I now turn to determining the s.399A application.

1. 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 Division4 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 theFWC may dismiss an application.”

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

1. As the Applicant did not file any submissions in opposition to the s.399A application, I will determine the application on the papers

1. There is no material presently before the Commission that would persuade me that the Applicant has attempted to defend the s.399A application. I find these circumstances to be an unreasonable failure to comply with a direction of the Commission relating to the Applicant’s application for an unfair dismissal remedy.

1. After considering all the material, Mr Tassie’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued with this decision.[1]

COMMISSIONER

Appearances:

Mr A. Lindrea, for the Respondent.

Hearing details:

4 November.
2024.

[1] PR781924

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<PR781912>