Mr Zack McLeod v Ziegam Pty Ltd

[2013] FWC 5931

[2013] FWC 5931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Zack McLeod
v
Ziegam Pty Ltd
(U2013/9418)

VICE PRESIDENT CATANZARITI SYDNEY, 20 AUGUST 2013

Application for relief from unfair dismissal - dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 10 May 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal (the Application) was lodged by Mr Zack McLeod (the Applicant). The Applicant’s employment had been terminated by Ziegam Pty Ltd (the Respondent) on 9 May 2013.

[2] Conciliation was to occur on 7 June 2013, but in accordance with a request made by the Applicant, the scheduled conciliation was adjourned. As the conciliation team could not contact the Applicant to obtain an alternative suitable date, the matter was referred to me, to be heard in August. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by 5:00 pm, 17 July 2013.

[4] The Applicant failed to comply with the direction to file material by 17 July 2013.

[5] On numerous occasions following 18 July 2013, the Commission attempted to contact the Applicant with regard to his failure to file his material. The Applicant was not contactable on either of the telephone numbers provided on the Application. Various telephone messages were left for the Applicant and an email was sent to him on 25 July 2013.

[6] The Applicant, to date, has not submitted any submissions, witness statements, or other documentary material, apart from the initial Application document.

[7] On 7 August 2013, the Respondent filed an application, pursuant to s.399A of the Act, that the Application be dismissed as the Applicant had failed to comply with a direction of the Commission.

[8] On 7 August 2013, correspondence was sent to the Applicant by the Commission alerting the Applicant to s.399A of the Act and directing him to file submissions in respect of the Respondent’s application by 5:00 pm on 16 August 2013. The Applicant was advised that if he failed to comply with the direction, the Application may be dismissed.

[9] The Applicant did not file any material with the Commission.

[10] Section 399A of the Act provides as follows:

(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.

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

[12] As the Applicant did not file any material in opposition to the application to dismiss and has failed to comply with directions without explanation, I have decided to determine the Application on the papers.

[13] After considering all the material before me, I have decided to dismiss the Application for remedy from unfair dismissal pursuant to s.399A(1)(b) of the Act. I order accordingly.

ORDER

1. The Application lodged by the Applicant under s.394 of the Fair Work Act 2009 on 10 May 2013 is dismissed pursuant to s.399A (b) of the Fair Work Act 2009.

VICE PRESIDENT

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