Mr Glenn Pitt v Cape Australia Onshore Pty Ltd T/A Cape Australia

[2017] FWC 5036

[2017] FWC 5036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Glenn Pitt

v

Cape Australia Onshore Pty Ltd T/A Cape Australia

(U2017/6098)

Deputy President Binet PERTH, 27 SEPTEMBER 2017

Application for an unfair dismissal remedy - application by respondent pursuant to s.399A - application dismissed.

1. On 8 June 2017, Mr Glenn Pitt (Mr Pitt) 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 Cape Australia Onshore Pty Ltd (Cape Australia).

1. On 22 June 2017, Cape Australia lodged a Form F3 Employer Response, advising that it objected to the Application on the grounds that Mr Pitt was not dismissed (Jurisdictional Objection).

1. The parties attended a conciliation conference before me on 28 July 2017, but the issues in dispute remain unresolved.  On 3 August 2017, directions outlining dates for the submission of materials by the parties were issued for the hearing and determination of the Jurisdictional Objection (Directions).

1. Cape Australia were required to file submissions in relation to the Jurisdictional Objection by 17 August 2017.  Cape Australia filed its submissions on 21 August 2017. 

1. In light of the respondent’s delay in filing its materials, the deadline for Mr Pitt to file his submissions was extended from 24 August 2017 to 28 August 2017.

1. On 28 August 2017, Mr Pitt emailed Chambers, but failed to file any submissions in accordance with the Directions.  Mr Pitt was advised that, if he wished to progress the matter, he was required to file an outline of submissions, and supporting materials, in response to the Jurisdictional Objection, as per the Directions.  A further extension of time was granted to close of business, 29 August 2017. No materials were received from Mr Pitt by this date, nor have any materials been filed by Mr Pitt as at the date of this decision.

1. On 30 August 2017, Cape Australia filed with Chambers and served on Mr Pitt an application for the matter to be dismissed pursuant to section 399A of the FW Act on the grounds that Mr Pitt unreasonably failed to comply with a direction of the FWC (Dismissal Application).

1. Section 399A of the FW 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.

Note 1: For another 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. Mr Pitt was invited by Chambers to make written submissions in relation to the Dismissal Application by 4 August 2017.  The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the matter.

1. No further correspondence has been received from Mr Pitt as at the date of this decision, and no request was received from Cape Australia to be heard orally.

1. I am satisfied that Mr Pitt has unreasonably failed to comply with directions issued by the FWC relating to his Application.

1. On the application of Cape Australia and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An order to this effect (PR596422) will be issued with this decision.

DEPUTY PRESIDENT

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<Price code A, PR596421>