Neville Huggins v Platinum Brew

[2017] FWC 2377

[2017] FWC 2377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neville Huggins
v
Platinum Brew
(U2017/669)

COMMISSIONER CRIBB MELBOURNE, 1 MAY 2017

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

[1] An application, under section 394 of the Fair Work Act 2009 (the Act), was made by Mr Neville Huggins (Applicant) on 20 January 2017. Mr Huggins’ employment ended with Platinum Brew (the Respondent) on 4 November 2016.

[2] As the application was made outside of the statutory timeframe of 21 days after the dismissal took effect, the application was listed for an extension of time hearing on 21 April 2017.

[3] A notice of listing was sent to Mr Huggins on 29 March 2017, which directed the Applicant to file an outline of submissions, witness statements and other documentary material intended to be relied on by the Applicant in support of an extension of time for lodgement of his unfair dismissal application. This material was to be filed by Thursday 6 April 2017.

[4] The Applicant did not comply with this direction.

[5] Several voice messages were left on Mr Huggins’ mobile asking him to call the Commission in relation to the extension of time hearing and his failure to comply with the directions, but no response has been received.

[6] On 19 April 2017 the Respondent made a verbal application under s.399A of the Act to have Mr Huggins’ application dismissed due to the failure by Mr Huggins to comply with directions of the Fair Work Commission (Commission).

[7] On 21 April 2017 correspondence was sent to Mr Huggins by the Commission, informing him of the s.399A application and directing him to file submissions providing reasons as to why the Commission should not dismiss his application, and any evidence or other documentary material to support those reasons. This material was to be provided by close of business on Friday 28 April 2017. The correspondence also advised Mr Huggins that failure to comply with this direction would result in his application being dismissed.

[8] Mr Huggins did not file any material with the Commission.

[9] 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.”

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

[11] As Mr Huggins did not file any material in relation to his application for an extension of time or provide reasons as to why he had not provided any material or why the Commission should not dismiss his application, I have decided to determine the Respondent’s application to dismiss Mr Huggins’ application on the papers.

[12] After considering all of the material before the Commission, pursuant to section 399A(1)(b) of the Act, I have decided to dismiss Mr Huggins’ application for an unfair dismissal remedy.

[13] An order 1 giving effect to this decision will be issued today.

 1   PR592537

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