Mr Jamie Conayne v Skill360 Australia Ltd T/A Skill360

[2014] FWC 5349

[2014] FWC 5349

FAIR WORK COMMISSION

DECISION

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

Mr Jamie Conayne
v
Skill360 Australia Ltd T/A Skill360
(U2014/1455)

COMMISSIONER SPENCER BRISBANE, 7 AUGUST 2014

Application for relief from unfair dismissal - application by employer under s.399A for application to be dismissed.

Introduction

[1] This decision relates to an application made by Mr Jamie Conayne (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from Skill360 Australia Ltd, the Respondent, was harsh, unjust or unreasonable (the substantive application).

[2] The Respondent has made an application, pursuant to s.399A of the Act, for the matter to be dismissed on the basis the Applicant has unreasonably failed to comply with a direction or order of the Fair Work Commission (the Commission).

[3] The application was not resolved at conciliation and was allocated to the Commission as currently constituted for arbitration.

[4] In response to the application, the Respondent raised a jurisdictional objection that the Applicant had filed his application out of time.

[5] Directions were initially issued which required the parties to make submissions in relation to the extension of time jurisdictional issue.

[6] The Applicant failed to comply with due date of the Directions. No explanation was received from the Applicant as to why he was unable to comply with the Directions.

[7] The Respondent provided a submission to the Commission in accordance with these directions.

[8] Further correspondence was forwarded to the Applicant enquiring as to his non-compliance with the Directions. An opportunity was afforded to the Applicant to provide reasons for his failure to comply with the Directions and his views were sought as to whether the application should be dismissed pursuant to s.399A of the Act.

[9] No response has been received from the Applicant and both sets of Directions have not been complied with.

Relevant legislative provisions

[10] 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.

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.

Conclusion

[11] The Respondent has made an application under s.3499A for the substantive application to be dismissed. I am satisfied that the Applicant has failed to comply with two sets of directions of the Fair Work Commission relating to the application. The application made under s.394 is therefore dismissed pursuant to s.399A(1)(b). I Order Accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR553995>