Mr Travis Kelly v Cape Australia

[2019] FWC 3916

[2019] FWC 3916

FAIR WORK COMMISSION

DECISION

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

Mr Travis Kelly
v
Cape Australia
(U2019/2644)

DEPUTY PRESIDENT BINET PERTH, 18 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 8 March 2019, Mr Travis Kelly (Mr Kelly) 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 Cape Australia Onshore Pty Ltd (Cape).

[2] In the Application Mr Kelly stated that he was notified of his dismissal on 7 February 2019.

[3] Section 394 of the FW Act provides that an application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. The FWC may allow a further period for an application to be made only if the FWC is satisfied that there are exceptional circumstancestaking into account:

a. the reason for the delay;

b. whether the person first became aware of the dismissal after it had taken effect;

c. the reason for the delay;

d. any action taken by the person to dispute the dismissal;

e. prejudice to the employer (including prejudice caused by the delay);

f. the merits of the application; and

g. fairness as between the person and other persons in a similar position.

[4] To be exceptional the circumstances must be out of the ordinary course, unusual, special or uncommon.

[5] The Application was allocated to Deputy President Binet on 1 April 2019. On 8 April 2019 directions were issued which required Mr Kelly to file materials in support of the extension of time of the Application.

[6] Mr Kelly filed his materials on 15 April 2019 in support of the extension of time of the Application. Mr Kelly failed to include Cape when filing the materials and so my Associate forwarded the documents to Cape on 17 April 2019.

[7] On 3 May 2019 in response to the documents filed, further directions were issued which required Cape to file documents in response to the submissions of Mr Kelly.

[8] On 13 May 2019 Chambers received submissions by Cape in response to the out of time issue and further submissions by Mr Kelly regarding the out of time objection.

[9] A Hearing was listed for 20 May 2019 to address the out of time objection to Mr Kelly’s Application. The Hearing could not take place as Mr Kelly nor Cape appeared before the FWC. Both parties were invited to make submissions with respect to how the Application should be dealt with in light of the failure of the parties to attend the Hearing by 4pm on 21 May 2019.

[10] On 21 May 2019 Cape requested I dismiss the Application given Mr Kelly failed to attend the Hearing and failed to comply with a direction to attend the Hearing pursuant to section 399A of the FW Act (Dismissal Application).

[11] 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 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.”

[12] On 21 May Mr Kelly was invited to make submissions providing reasons why the FWC should not dismiss his application by 4pm on 23 May 2019.

[13] On 24 May 2019, Mr Kelly was again invited to file submissions providing reasons why the FWC should not dismiss his application. This material was to be provided to the FWC by noon on 27 May 2019.

[14] Mr Kelly was also notified that if he did not comply with the directions and file submissions by this date, that his Application for an unfair dismissal remedy would be dismissed.

[15] To date the FWC has not received any further communication from Mr Kelly.

[16] The Explanatory Memorandum states the FWC may exercise its discretion to dismiss an application under this provision in situations which include the following:

Where an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend.” 1

[17] On the application of Cape and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application on the ground that Mr Kelly unreasonably failed to comply with a direction issued by the FWC to attend a hearing conducted by the FWC.

[18] Consequently, the Application is dismissed pursuant to section 399A(1)(a) and (b) of the FW Act.

[19] An Order (PR709075) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR709074>

 1   Explanatory Memorandum, Fair Work Amendment Bill 2012 (Cth) 36.