Mr James Stout v Woodstock Civil & Drainage Pty Ltd

[2014] FWC 7625

[2014] FWC 7625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr James Stout
v
Woodstock Civil & Drainage Pty Ltd
(U2014/8778)

COMMISSIONER CLOGHAN PERTH, 27 OCTOBER 2014

Unfair dismissal - application dismissed pursuant to s.399A of FW Act.

[1] On 14 August 2014, Mr James Stout (Mr Stout or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Woodstock Civil & Drainage Pty Ltd (Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The application was not resolved at conciliation and was referred to me for arbitration on 17 September 2014.

[4] On 22 September 2014, I issued Directions in relation to the Employer’s jurisdictional objection to Mr Stout’s application.

[5] On 30 September 2014, the Employer withdrew its jurisdictional objection to Mr Stout’s application.

[6] On 30 September 2014, I issued amended Directions for a hearing on 4 November 2014 into Mr Stout’s application.

[7] In accordance with the Directions, both parties, on 7 October 2014, provided documents to the Commission which they intended to rely upon in the hearing.

[8] On 15 October 2014, the Employer filed an application seeking that the application be dismissed pursuant to sections 399A(1)(b) and 399A(2) of the FW Act, on the basis that the Applicant had unreasonably failed to comply with a direction of the Commission.

[9] The Employer’s application referred to the Applicant’s failure to provide, by 4:00 pm on 14 October 2014:

• a Statement of Facts;



• witness statements (if any); and



• other documentary material (if any).

[10] At that time, both parties had legal representation.

[11] On 16 October 2014, the Applicant’s legal representative provided a response to the Commission relating to the Employer’s application to dismiss. The response was essentially that he had been unable to obtain instructions from the Applicant. The Applicant and the Employer’s representative were copied into the response.

[12] On 20 October 2014, my Associate emailed the Applicant’s representative and the Applicant that Mr Stout’s compliance with the matters in paragraph [9] was extended to 4:00 pm on 24 October 2014. My Associate also advised the Applicant’s legal representative and the Applicant, that I had formed the view that should compliance not be forthcoming by 24 October 2014, the application would be dismissed pursuant to s.399A of the FW Act.

[13] On 23 October 2014, the Applicant’s legal representative ceased to act for Mr Stout.

[14] The Applicant has not complied with the amended Directions nor has he advised the Commission of the reason(s) why he was unable to comply with the amended Directions.

[15] For the above reasons, Mr Stout’s application is dismissed pursuant to s.399A of the FW Act as I am satisfied that he has unreasonably failed to comply with a direction of the Commission in accordance with paragraph 399A of the FW Act. An Order to this effect is attached to this Decision.

COMMISSIONER

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