Mr Damien Griffiths v Tox Free Australia Pty Ltd

[2016] FWC 209

[2016] FWC 209

FAIR WORK COMMISSION

DECISION

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

Mr Damien Griffiths
v
Tox Free Australia Pty Ltd
(U2015/12019)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 28 September 2015, Mr Damien Griffiths made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Griffiths’ employment had been terminated by Tox Free Australia Pty Ltd on 18 September 2015.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for jurisdiction and arbitration hearing.

[3] Mr Griffiths was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 December 2015.

[4] On 14 December 2015, Commission staff attempted to contact Mr Griffiths to confirm that materials in support of his application were due to be filed that day, including leaving Mr Griffiths a voicemail message and sending a text message.

[5] Mr Griffiths did not comply with this direction and the matter was listed for a non compliance hearing before me on 18 December 2015.

[6] On 15 December 2015, Tox Free filed an objection to the application and sought the dismissal of Mr Griffiths’ application. Tox Free based their objection on grounds which include failure to comply with directions.

[7] On 17 December 2015 the Commission issued a cancellation notice to the parties with respect to the non compliance hearing and the jurisdiction and arbitration hearing.

[8] On 17 December 2015 Mr Griffiths was sent correspondence informing him of Tox Free’s section 399A application. Mr Griffiths was directed to file submissions and other documentary material in respect of Tox Free’s application by close of business, on 28 December 2015. Mr Griffiths was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr Griffiths did not file any material with the Commission.

[10] 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.

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

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

[13] As Mr Griffiths has provided no explanation for his failure to comply with the directions, I find that his failure was unreasonable.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Griffiths has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss his application.

[15] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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