Mr Shane Mann v Minjerribah Camping Pty Ltd T/A Straddie Camping
[2018] FWC 4838
•16 AUGUST 2018
| [2018] FWC 4838 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shane Mann
v
Minjerribah Camping Pty Ltd T/A Straddie Camping
(U2018/6123)
| Commissioner Johns | MELBOURNE, 16 AUGUST 2018 |
Application for an unfair dismissal remedy – s.399 application to dismiss unfair dismissal application.
On 14 June 2018, Mr Shane Mann (Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). The Applicant alleged his employment had been terminated unfairly by Minjerribah Camping Pty Ltd T/A Straddie Camping (Respondent) on 23 May 2017.
The matter was allocated to me on 31 July 2018 to hear the determine whether the Commission should allow the Applicant a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged 1 day after the 21 day time limit provided for in the FW Act.
The matter was listed for hearing on Wednesday, 8 August 2018 by telephone.
On 1 August 2018 I issued directions that the parties both file any evidence, submissions or documents in support of their position addressing each subsection in section 394(3) of the FW Act by 5pm on Monday, 6 August 2018.
On 8 August 2018 at the telephone hearing, the Applicant’s provided number was dialled and subsequently rang out unanswered. The number was dialled a further two times to no avail.
Subsequently, the hearing commenced in the absence of the Applicant.
During the hearing, the Respondent made an application under Section 399A of the FW Act to dismiss the Applicant’s application for remedy from unfair dismissal.
On 8 August 2018 the Applicant was directed to file a response on why the matter should not be dismissed before 5:00pm on 15 August 2018. This was sent by email and express post to the Applicant.
The Applicant has not filed any materials in response.
Determination
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.
Because the Applicant did not file any material in opposition to the application to dismiss his application for unfair dismissal remedy, I will determine the s.399A application on the papers.
I am satisfied that the Applicant unreasonably failed to attend the hearing on 8 August 2018.
Consequently, after considering all the material, the Applicant’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.
COMMISSIONER
Appearances:
Mr T Johnson, Minjerribah Camping Pty Ltd T/A Straddie Camping
Hearing details:
8 August 2018 by Telephone
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