Mr Jeffrey Phillipi v W F Reid Pty Ltd T/A Sun Palms Hotel Motel

[2014] FWC 4830

[2014] FWC 4830

FAIR WORK COMMISSION

DECISION

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

Mr Jeffrey Phillipi
v
W F Reid Pty Ltd T/A Sun Palms Hotel Motel
(U2014/39)

DEPUTY PRESIDENT ASBURY BRISBANE, 12 SEPTEMBER 2014

Application for unfair dismissal remedy - Application to dismiss under s.399A - Application dismissed.

[1] This decision concerns an application by Mr Jeffrey Phillipi under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by W F Reid Pty Ltd t/a Sun Palms Hotel Motel (Sun Palms).

[2] Mr Phillipi states in the Form F2 Application for an unfair dismissal remedy that he was dismissed on 30 August 2013 and that the dismissal took effect on that date. The application was made on 6 January 2014, some 108 days outside the time required in s.394(2) of the Act.

[3] The matter was listed for conciliation on 27 February 2014. The Conciliator attempted to contact Mr Phillipi a number of times, but was unsuccessful. Messages were left for Mr Phillipi to contact the Commission, however no contact has been made.

[4] The matter was allocated to the Commission as currently constituted to determine the jurisdictional objection. The matter was listed for Mention and/or Directions on 2 May 2014. The Applicant was uncontactable at the time of the Conference. Several attempts were made to contact the Applicant on the number provided in the application, however these attempts were unsuccessful.

[5] On the basis of Mr Phillipi’s non-attendance, Sun Palms applied under s.399A of the Act for Mr Phillipi’s application to be dismissed on the ground that the Applicant failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application. Mr Phillipi was forwarded a copy of the s.399A application and requested to provide written submissions in response to the application to dismiss. Mr Phillipi failed to provide any submissions in response.

[6] In the Form F2, Mr Phillipi states that he had only recently come aware of another employee performing similar work to that performed by Mr Phillipi. He also states that since he became aware that his previous duties were being performed by another employee, he believed his dismissal was not a case of genuine redundancy. Mr Phillipi has provided no further information or evidence in relation to the circumstances which prevented him from filing his application within the required time. Accordingly I am unable to be satisfied that there are exceptional circumstances taking into account the matters in s.394(3).

[7] In all of the circumstances I am satisfied that the discretion under s.399A of the Act to dismiss Mr Phillipi’s application should be exercised on the basis that he failed to attend a conference and failed to comply with a direction of the Commission relating to his application. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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