Mr Benjamin Keddie v MRL Asset Management Pty Ltd

[2023] FWC 297

[2023] FWC 297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Benjamin Keddie

v

MRL Asset Management Pty Ltd

(U2022/11769)

DEPUTY PRESIDENT BINET PERTH, 3 FEBRUARY 2023

Application for an unfair dismissal remedy

1. On 12 December 2022 2022, Mr Benjamin Keddie (Mr Keddie) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by MRL Asset Management Pty Ltd (MRL).

1. On 6 January 2023, MRL filed a Form F3 - Employer response to unfair dismissal application raising the Jurisdictional Objection that Mr Keddie’s Application is out of time.

1. The Application was allocated to my Chambers for determination.

1. Directions were issued to parties on 12 January 2023 which required Mr Keddie to file his materials in relation to the question of whether to extend the time for filing the Application by 4pm (AWST) Thursday 19 January 2023 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

1. Mr Keddie failed to file any materials in accordance with the Directions.

1. On Monday 23 January 2023, Chambers wrote to Mr Keddie and reminded him that his materials in relation his application for an extension of time were overdue.

1. On Friday 27 January 2023 MRL made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Keddie failed to comply with the Directions (Dismissal Application).

1. On Friday 27 January 2023 MRL filed materials pursuant to the Directions in support of their Jurisdictional Objection raised.

1. On Friday 27 January 2023 Mr Keddie was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Wednesday 1 February 2023. Chambers advised Mr Keddie that if he did not file submissions and evidence by 4pm (AWST) Wednesday 1 February 2023 the Application would be dismissed pursuant to section 399A of the FW Act.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Keddie by 4pm (AWST) Wednesday 1 February 2023, or since.

1. Section 399A of the FW Act provides:

“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.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

1. Mr Keddie failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr Keddie has still not filed any materials in support of the Application or in response to the Dismissal Application. Mr Keddie has not sought an extension to file his materials in support of the Application or in response to the Dismissal Application. I am satisfied that Mr Keddie has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of MRL and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

1. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Print PR742495.

Printed by authority of the Commonwealth Government Printer

<PR750209>