Mr Geoffrey Collin Rowe v South32 Worsley Alumina Pty Ltd
[2022] FWC 674
| [2022] FWC 674 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Geoffrey Collin Rowe
v
South32 Worsley Alumina Pty Ltd
(U2021/12325)
| DEPUTY PRESIDENT BINET | PERTH, 5 April 2022 |
Application dismissed - s 399A of the Fair Work Act (Cth).
On 26 December 2021, Mr Geoffrey Rowe (Mr Rowe) 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 South32 Worsley Alumina Pty Ltd (South32).
On 17 January 2022 2022, South32 filed a Form F3 - Employer response to unfair dismissal application.
The Application was allocated to my Chambers for determination.
On 17 February 2022, the matter was listed for a Staff Conciliation via telephone. The Staff Conciliation was unable to proceed and was cancelled as Mr Rowe was unable to be contacted.
Directions were issued to parties on 2 March 2022 which required Mr Rowe to file his materials in relation to the merit of the Application by 4pm (AWST) 9 March 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.
Mr Rowe failed to file any materials in accordance with the Directions.
On 10 March 2022, Chambers wrote to Mr Rowe and reminded him that his materials in relation to the merits of his application were overdue.
On 15 March 2022 South32 made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Rowe failed to comply with the Directions (Dismissal Application).
Mr Rowe was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) on Friday 18 March 2022. Chambers advised Mr Rowe that if he did not file submissions and evidence by 4pm (AWST) Friday 18 March 2022 the Application would be dismissed pursuant to section 399A of the FW Act.
No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Rowe by 4pm (AWST) Friday 18 March 2022, or since.
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.”
Mr Rowe 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 Rowe has still not filed any materials in support of his Application or in response to the Dismissal Application. Mr Rowe 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 Rowe has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of South32 and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.
An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] Print PR739711.
Printed by authority of the Commonwealth Government Printer
<PR739710>
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