Mr Christopher Hills v Midwest Traffic Management Pty Ltd

[2014] FWC 3740

[2014] FWC 3740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Christopher Hills
v
Midwest Traffic Management Pty Ltd
(U2014/6195)

COMMISSIONER CAMBRIDGE SYDNEY, 5 JUNE 2014

Application for relief from unfair dismissal.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 3 April 2014. The application was made by Christopher John Hills (the applicant) and the employer is Midwest Traffic Management Pty Ltd(the employer).

[2] The application indicated that the date the applicant’s dismissal took effect was 5 March 2014. Consequently, the application was not made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] Consequently, Directions were issued by the Fair Work Commission (the Commission) and the matter was listed for Extension of Time Conference/Hearing in Orange at 9:30am on 20 May 2014.

[4] The applicant did not comply with the Directions for filing of material.

[5] On 16 May 2014, the employer made an application pursuant to s.399A of the Act, that the matter be dismissed on the grounds that the applicant failed to comply with a Direction of the Commission.

[6] On 19 May 2014, the Commission cancelled the proceedings scheduled to commence in Orange the following day. The Commission advised the Parties that the application made by the employer to have the matter dismissed would now be dealt with via the provision of documents. In this correspondence, the Commission advised that the applicant was required to submit any documentation or submission in relation to the employer’s application to have the matter dismissed, by no later than 2 June 2014.

[7] As of 5 June 2014, the Commission has not received any further communication from the applicant, nor has the applicant filed or otherwise provided any material in opposition to the application to dismiss. Therefore, I have proceeded to determine the application on the material before me.

[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] After considering all of the material, I am satisfied that the conduct of the applicant has involved him unreasonably failing to comply with the Directions of the Commission. Consequently, the provisions of subsections (1) (b) of s.399A of the Act have been met.

[10] Therefore, pursuant to s.399A of the Act, the application for remedy from unfair dismissal is dismissed. An Order [PR551485] giving effect to this Decision will be issued today.

COMMISSIONER

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<Price code A, PR551484>