Mr Ryan Norris v Rio Tinto T/A Pilbara Iron Ore Company Pty Ltd

[2017] FWC 3660

[2017] FWC 3660

FAIR WORK COMMISSION

DECISION

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

Mr Ryan Norris
v
RIO TINTO T/A Pilbara Iron Ore Company PTY LTD
(U2017/1234)

DEPUTY PRESIDENT BINET PERTH, 14 JULY 2017

Application for an unfair dismissal remedy - application by respondent pursuant to s.399A - application dismissed.

[1] On 6 February 2017, Mr Ryan Norris (Mr Norris) 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 Pilbara Iron Company (Services) Pty Ltd T/A Rio Tinto Iron Ore (Rio Tinto).

[1] On 20 March 2017, Rio Tinto lodged a Form F3 Employer Response to the Application noting it had no jurisdictional objections to the Application.

[2] On 23 March 2017, the matter went to conciliation before a FWC conciliator but the parties were unable to resolve the issues in dispute.

[3] The parties subsequently attended a conciliation conference before me on 30 March 2017, but the issues in dispute remained unresolved. On 13 April 2017, directions outlining dates for the submission of materials by the parties were issued for the hearing of this matter on 18 and 19 May 2017 (Directions).

[4] The Directions required Mr Norris to file submissions in support of his application by close of business, Thursday 27 April 2017. No submissions were received by this date. On 28 April 2017, the deadline for Mr Norris to file his submissions was extended until 9.00am, Monday 1 May 2017, but no materials were received.

[5] On 1 May 2017, Chambers telephoned both Mr Norris and Mr Robert Smith (Mr Smith), who was appointed as an unpaid agent by Mr Norris. Neither Mr Norris nor Mr Smith answered these calls, or returned these calls in response to messages left by Chambers.

[6] On 2 May 2017, Rio Tinto filed with Chambers and served on Mr Norris an application for the matter to be dismissed pursuant to section 399A of the FW Act on the grounds that Mr Norris unreasonably failed to comply with a direction of the FWC (Dismissal Application).

[7] Section 399A of the FW 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.”

[8] Mr Norris was invited by Chambers to make written submissions in relation to the Dismissal Application by 5 May 2017. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the matter.

[9] No correspondence has been received from Mr Norris as at the date of this decision, and no request was received from Rio Tinto to be heard orally.

[10] I am satisfied that Mr Norris has unreasonably failed to comply with directions issued by the FWC relating to his Application.

[11] On the application of Rio Tinto and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An order to this effect (PR594466) will be issued with this decision.

DEPUTY PRESIDENT

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