Mr George Dimond v Serco Australia Pty Ltd

[2022] FWC 991

[2022] FWC 991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr George Dimond

v

Serco Australia Pty Ltd

(U2022/3007)

DEPUTY PRESIDENT BINET PERTH, 23 JUNE 2022

Application for an unfair dismissal remedy. Application Dismissed pursuant to s 399A of the Fair Work Act 2009 (Cth).

1. On 31 January 2022, Mr George Dimond (Mr Dimond) filed an application (First Application)[1] pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Serco Australia Pty Ltd (Serco Australia).

1. The First Application stated that Mr Dimond’s dismissal took affect on 3 January 2022, 28 days before lodging his Application with the FWC.

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

1. On 10 March 2022 Mr Dimond filed a Form F50 Notice of Discontinuance with Chambers stating that he discontinues the First Application to pursue an alternate application.

1. On 10 March 2022, Mr Dimond  filed an another application (Second Application) pursuant to section 394 of the FW Act alleging he was unfairly dismissed by Serco Australia on 9 January 2022. The Second Application was filed eight days late.

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

1. On 14 April 2022 Directions were issued to the Parties for their attention and action (Directions). The Directions stated that Mr Dimond was to file and serve on Serco Australia by 4pm (AWST) 22 April 2022 materials in relation to the question of whether to extend the time of filing his Second Application. These materials included an outline of submissions, a signed and dated witness statement (including from Mr Dimond), and any authorities or documents upon which Mr Dimond relies.

1. The Directions stated that compliance with the Directions is mandatory and a failure to comply may disadvantage the Party concerned.

1. No materials were received from Mr Dimond in accordance with the date specified in the Directions.

1. On 26 April 2022, Chambers wrote to Mr Dimond and informed him that his materials in support of his Second Application were overdue.

1. On 28 April 2022 Serco Australia made an application pursuant to section 399A of the FW Act for the Second Application to be dismissed on the grounds that Mr Dimond failed to comply with directions of the FWC (Dismissal Application).

1. Mr Dimond was invited to file materials, submissions and evidence as to why the Second Application should not be dismissed by 4pm (AWST) on Friday 29 April 2022. Chambers advised Mr Dimond that if he did not file submissions and evidence by 4pm (AWST) Friday 29 April 2022 the Second Application would be dismissed pursuant to section 399A of the FW Act.

1. No submissions or evidence were filed in relation to the Dismissal Application by Mr Dimond by 4pm (AWST) Friday 29 April 2022, 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. As at the date of this decision Mr Dimond has still not filed any materials in accordance with the Directions or in response to the Dismissal Application. Mr Dimond has not sought an extension to file his materials in accordance with the Directions or in response to the Dismissal Application. I am satisfied that Mr Dimond has unreasonably failed to comply with a direction of the FWC. On the Application of Serco Australia and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

1. An Order[2] to this effect was issued on 29 April 2022.

DEPUTY PRESIDENT

< PR741111>

[1] Matter U2022/1356.

[2] Print PR741110.

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