Mr Jamie Graham v Roy Hill Operations Pty Ltd

[2021] FWC 4983

[2021] FWC 4983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Jamie Graham
v
Roy Hill Operations Pty Ltd
(U2021/5190)

DEPUTY PRESIDENT BINET PERTH, 12 AUGUST 2021

Application for an unfair dismissal remedy - Application by the Respondent pursuant to s 399A of the Fair Work Act – Application dismissed.

[1] On 15 June 2021, Mr Jamie Graham (Mr Graham) 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 Roy Hill Operations Pty Ltd (Roy Hill).

[2] The Application was allocated to my Chambers for determination.

[3] On 21 July 2021 the Application was listed for a conciliation conference. The issues in dispute between the parties could not be resolved and I explained to Mr Graham the nature of the materials which he would be required to file for the Application to be determined and that he must strictly comply with the timeframes set for the filing of those materials.

[4] Directions were issued to parties on 26 July 2021 which required Mr Graham to file his materials in relation to the merit of the Application by 5 August 2021 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[5] Mr Graham failed to file any materials in accordance with the Directions.

[6] On 6 August 2021 Roy Hill made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Graham failed to comply with the Directions (Dismissal Application).

[7] On 9 August 2021, Chambers wrote to Mr Morris and reminded him that his materials in relation to the merits of his application were overdue and that they should be filed no later than 4pm on Tuesday 10 August 2021.

[8] On the same day Mr Graham was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm on Tuesday 10 August 2021. Chambers warned Mr Graham that if he did not respond to the Dismissal Application by 4pm on Tuesday 10 August 2021the Application would be dismissed pursuant to section 399A of the FW Act.

[9] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Graham by 4pm Tuesday 10 August 2021, or since.

[10] Section 399A of the FW Act provides:

“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 other 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.”

[11] Mr Graham failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr Graham has still not filed any materials in support of his Application or in response to the Dismissal Application. I am satisfied that Mr Graham has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Roy Hill and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

[12] An Order to this effect will be issued with this decision. 1

DEPUTY PRESIDENT

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