Mr Glen Henderson v Walagullaby Welding Works

[2017] FWC 6288

[2017] FWC 6288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Glen Henderson

v

Walagullaby Welding Works

(U2017/9502)

Commissioner Hunt BRISBANE, 28 NOVEMBER 2017

Application for an unfair dismissal remedy.

1. This decision, now edited, was given ex tempore at the conclusion of proceedings on 28 November 2017.

1. On 1 September 2017, Mr Glen Henderson made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Henderson’s employment had been terminated by Walagullaby Welding Works on 4 August 2017.

1. The application has been made outside of the 21 day statutory time limit provided for in the Act.

1. On 6 November 2017, directions were issued from my chambers to the parties informing them of a hearing on 28 November 2017 to deal with the jurisdictional issue of the application having been filed outside of the time limit.

1. The directions required Mr Henderson to file his material by 13 November 2017, and the respondent by 20 November 2017.

1. Mr Henderson failed to comply with the directions.

1. Walagullaby Welding Works filed witness statements and submissions on 16 November 2017.

1. On 21 November 2017, correspondence was sent from my Chambers to Mr Henderson noting that the material had not been filed by 13 November 2017, and no extension had been sought by him.  Directions were issued for Mr Henderson to file his material and provide an acceptable reason for non-compliance with the earlier directions by 22 November 2017.   The correspondence stated that if nothing is heard from Mr Henderson, the application may be dismissed.

1. On 23 November 2017, my Associate spoke with Mr Henderson on the telephone.  Mr Henderson advised my Associate he had not seen the emails from the Fair Work Commission (the Commission). Mr Henderson stated that he would attend to the directions that afternoon.

1. On 24 November 2017, correspondence was sent from my Chambers to the parties informing them of the power of the Commission to dismiss an application pursuant to s.399A and 587 of the Act.

1. As of today’s date, no material has been filed by Mr Henderson, and he has not made any further attempt to contact my Chambers.  Mr Henderson also failed to attend today’s hearing by telephone.

1. 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.’

1. At the hearing today Walagullaby Welding Works made an application under s.399A of the Act for the Commission to dismiss Mr Henderson’s application for failure to comply with a direction of the Commission and failure to attend a hearing held by the Commission. 

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary.  Despite numerous opportunities and contact from my Chambers, Mr Henderson has failed to submit his material and attend today’s hearing. 

1. Mr Henderson has shown no willingness to prosecute his case. He has provided no explanation for his failure to comply with the directions to file material relevant to the determination of whether the Commission should exercise its discretion to grant an extension of time. 

1. I find Mr Henderson’s failure to file material, provide an explanation for the failure to do so, and failure to attend the hearing unreasonable.

1. In these circumstances, I will exercise my discretion and dismiss Mr Henderson’s application.

1. Mr Henderson’s application is dismissed.

COMMISSIONER

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