Mr Jason Love v Rivet Mining Services

[2023] FWC 2463

[2023] FWC 2463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Jason Love
v

Rivet Mining Services

(U2023/3731)

DEPUTY PRESIDENT BINET PERTH, 29 SEPTEMBER 2023

Application for an unfair dismissal remedy

1. On 1 May 2023, Mr Jason Love (Mr Love) 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 Rivert Mining Services (Rivert Mining).

1. On 19 May 2023, Rivert Mining filed a Form F3 - Employer response to unfair dismissal application raising the jurisdictional objection that Mr Love’s dismissal was a case of genuine redundancy (Jurisdictional Objection).

1. The Application was allocated to my Chambers for determination.

1. Directions were issued to parties on 6 September 2023 which required Mr Love to file his materials in relation to the merit of the Application by 4pm 13 September 2023 and his materials in response to the Jurisdictional Objection by 4pm 20 September 2023 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

1. Mr Love failed to file any materials in accordance with the Directions.

1. On 19 September 2023, Chambers wrote to Mr Love and reminded him that his materials in relation to the merits of his application were overdue.

1. On 15 September 2023 Rivert Mining made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Love failed to comply with the Directions (Dismissal Application).

1. Mr Love was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on Friday 22 September 2023. Chambers advised Mr Love that if he did not file submissions and evidence by 4pm Friday 22 September 2023 the Application would be dismissed pursuant to section 399A of the FW Act.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Love by 4pm Friday 22 September 2023, or since.

1. 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.”

1. Mr Love 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 Love has still not filed any materials in support of his Application or in response to the Dismissal Application. I am satisfied that Mr Love has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Rivert Mining and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

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

DEPUTY PRESIDENT

[1] PR766541.

Printed by authority of the Commonwealth Government Printer

<PR766540>