Mr Jamie Willersdorf v Yeast2West Pty Ltd T/A Yeast2West Longreach Bakery

[2017] FWC 3049

[2017] FWC 3049

FAIR WORK COMMISSION

DECISION

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

Mr Jamie Willersdorf
v
Yeast2West Pty Ltd T/A Yeast2West Longreach Bakery
(U2017/1218)

COMMISSIONER BOOTH BRISBANE, 20 JUNE 2017

Termination of employment - s.399A Application to dismiss.

[1] On 6 February 2017, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Jamie Willersdorf (the Applicant). The Applicant’s employment had been terminated by Yeast2West Pty Ltd T/A Yeast2West Longreach Bakery (the Respondent) on 16 January 2017.

[2] The application was listed for a conciliation conference before a conciliator on 13 March 2017 at which the Applicant was uncontactable despite efforts to do so. The Applicant made no attempt to contact the Fair Work Commission (the Commission) therefore the matter was referred for arbitration.

[3] A Directions conference by telephone was listed for 19 April 2017 at which the Applicant failed to appear. Attempts to contact him were unsuccessful and voicemail messages as well as email messages were left for the Applicant to contact the Commission.

[4] Correspondence was posted and emailed to the Applicant on 26 April 2017 requesting that he provide the Commission with an explanation as to his failure to attend the Directions conference by telephone. He was advised that a response as to whether he intended to proceed with his application was required by 5 May 2017.

[5] No response was received by the due date.

[6] On 22 May 2017, the Respondent emailed an objection to the application and sought the dismissal of the Applicant’s application under s.399A.

[7] Further correspondence was sent by email and post to the Applicant on 23 May 2017. He was directed to provide submissions providing reasons as to why his application should not be dismissed by close of business 2 June 2017.

[8] The Applicant was sent a copy of the Respondent’s objection and was requested to provide a response by 9 June 2017 and advised that if no response received the s.399A application will be decided on the papers.

[9] The Applicant did not file any material with the Commission.

[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.

[11] Taking into account the provisions of s.399A and specifically s.399A(2), I am satisfied that the Respondent’s correspondence filed on 22 May 2017 is an application to have the matter dismissed for the Applicant’s failure to meet the provisions of ss.399A(1)(a) and (b).

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

[13] As the Applicant has shown no willingness to prosecute his case, I have decided to determine the application on the papers.

[14] Upon considering that the Applicant did not file any material in opposition to the application to dismiss and has failed to attend a conference and comply with directions, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal under s.399A(1)(a) and (b) of the Act. An order giving effect to this decision will be issued today.

COMMISSIONER

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