Mr James Petrie v Greenham Gippsland Pty Ltd T/A Greenham Gippsland

[2024] FWC 3387

[2024] FWC 3387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr James Petrie
v

Greenham Gippsland Pty Ltd T/A Greenham Gippsland

(U2024/10075)

COMMISSIONER WILSON MELBOURNE, 5 DECEMBER 2024

Application for an unfair dismissal remedy - Applicant non-compliant with Directions of the Commission - s.399A application - unfair dismissal application dismissed.

1. On 23 August 2024, Mr James Petrie (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Greenham Gippsland Pty Ltd T/A Greenham Gippsland (the Respondent). Mr Petrie’s employment had been terminated on 20 August 2024.

1. Consistent with the Commission’s usual practice on these matters, the matter was referred to me for hearing.

1. The Respondent filed a Form F3 Employer’s Response Form on 25 September 2024.

1. Directions were issued to parties on 29 October 2024. The Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material he intended to rely on in support of an extension of time by 4.00PM 19 November 2024.

1. No submissions were filed by the Applicant by that date. On 25 November 2024, my Chambers wrote to Mr Petrie advising that his application was at risk of being listed for non-compliance hearing and directed him to file his materials by close of business that day. No correspondence was received from the Applicant in response to that email.

1. On 28 November 2024, my Chambers wrote to Mr Petrie again, notifying him that if he did not provide an explanation as to the delay and file his submissions by 5:00PM that day, 28 November 2024, the matter would be listed for Non-Compliance Hearing. Again, no response was received from the Applicant.

1. On 29 November, my Chambers notified the Applicant that the matter had been listed for Non-Compliance Hearing at 9:30AM on 3 December 2024, and that if he did not attend the Hearing and explain his non-compliance with the Directions, his application may be dismissed under s.399A of the Act.

1. The Applicant did not respond to either of the emails sent to him by my Chambers and did not attend the Non-Compliance Hearing on 3 December.

1. On 3 December, my Chambers called the Applicant twice prior to the beginning of the Non-Compliance Hearing on both the numbers supplied in his F2 Application. The first call went to voicemail. The second call, on a different number, was answered by the Applicant’s emergency contact, who advised the Applicant was at work.

1. At the Non-Compliance Hearing, Mr Danaher, the Respondent’s representative, made a s.399A application for matter U2024/10075 to be dismissed.

1. After the Non-Compliance Hearing on 3 December2024, a further email was sent to the Applicant informing him of the s.399A application made by the Respondent at the Non-Compliance Hearing. The Applicant was directed in this email to file submissions with the Commission and the Respondent as to why the Commission should not dismiss his application, by 4:00PM Wednesday, 4 December 2024. The Applicant did not file any material or make any contact with my Chambers or the Respondent in relation to this direction.

1. I now turn to determining the s.399A application.

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 Division4 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 theFWC may dismiss an application.”

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

1. As the Applicant did not file any submissions in opposition to the s.399A application, I will determine the application on the papers

1. There is no material presently before the Commission that would persuade me that the Applicant has attempted to defend the s.399A application. I find these circumstances to be an unreasonable failure to comply with a direction of the Commission relating to the Applicant’s application for an unfair dismissal remedy.

1. After considering all the material, Mr Petrie’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued with this decision.[1]

COMMISSIONER

Appearances:

Mr M. Danaher, for the Respondent.

Hearing details:

3 December.
2024.

[1] PR782058

Printed by authority of the Commonwealth Government Printer

<PR782057>