Mr Richard Michael Kyne v Bunnings Group Limited

[2022] FWC 529

[2022] FWC 529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Richard Michael Kyne

v

Bunnings Group Limited

(U2021/9676)

COMMISSIONER WILSON MELBOURNE, 9 MARCH 2022

Application for relief from unfair dismissal.

1. On 28 October 2021, Mr Kyne made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Kyne’s employment had been terminated by Bunnings Group Limited on 7 October 2021.

1. The matter was listed for conciliation on 8 December 2021 however it could not take place. The conciliation was rescheduled to 20 December 2021, however this conciliation also could not take place. Consequently, directions were issued and the matter was listed for hearing.

1. Mr Kyne was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by 4PM Friday 11 February 2022. Due to Mr Kyne’s non-compliance with this direction, the matter was listed for mention at 9:30AM Wednesday 23 February 2022.

1. At the above mention, Ms Deanna Carlon as a lawyer working within Bunnings Group Limited, made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Kyne had failed to comply with the direction of the Fair Work Commission (the Commission) through his failure to file submissions.

1. At the above mention, Mr Kyne also requested an extension to file his submissions. Upon consideration, I determined I would grant the extension and not accept the s.399A application at that point in time. A further period of time was granted and Mr Kyne was required to file his material by 4PM Monday 28 February 2022.

1. Mr Kyne did not comply with the extended filing date and, as a consequence, correspondence was sent to the parties on 1 March 2022 advising the Respondent that the Commissioner was disposed to progress the s.399A application made in the mention previously held for this matter should they wish to advise he give further consideration to it. The Respondent advised by return correspondence that it did wish for the s.399A application to be progressed due to the Applicant’s failure to comply with directions issued by the Commission.

1. On 1 March 2022 Mr Kyne was sent correspondence informing him of the Respondent’s s.399A application. Mr Kyne was directed to file submissions and other documentary material in respect of Bunnings Group Limited’s application by 4PM 8 March 2022. Mr Kyne was advised that if he failed to comply with this direction, his application would be dismissed.

1. Mr Kyne did not file any material with the Commission.

1. 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.

   ....
   (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. I am satisfied that Bunnings Group Limited’s objection filed on 3 March 2022 is an application to have the matter dismissed for Mr Kyne’s failure to comply with a direction and failure to attend the non compliance hearing.

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

1. As Mr Kyne did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. After considering all the material, Mr Kyne’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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