Nicholas Fraser v Victorian YMCA Community Programming Pty Ltd

[2016] FWC 7482

[2016] FWC 7482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Fraser
v
Victorian YMCA Community Programming Pty Ltd
(U2016/11123)

COMMISSIONER RYAN MELBOURNE, 18 OCTOBER 2016

Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 7 September 2016, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Nicholas Fraser (the Applicant). The Applicant’s employment had been terminated by Victorian YMCA Community Programming Pty Ltd (the Respondent) on 13 August 2016.

[2] As the application was filed outside the legislated timeframe of 21 days, the application was listed for an extension of time hearing on 14 October 2016 and directions were issued to the parties to file material in relation to the jurisdictional issue: extension of time. The Applicant was to file material he wished to rely upon in support of being granted an extension of time by noon on 29 September 2016.

[3] The Applicant failed to comply with this direction.

[4] The Respondent filed an application pursuant to s.399A of the Act on 5 October 2016.

[5] On 7 October 2016, the Applicant was sent correspondence informing him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 12 October 2016. The Applicant was advised that if he failed to comply with the direction, the application would be dismissed.

[6] The Applicant did not file any material with the Commission by the due date.

[7] On 12 October 2016 my Chambers attempted to telephone the Applicant and also emailed the Applicant asking the Applicant to make contact regarding his application. No response was received.

[8] On 13 October 2016 I attempted to telephone the Applicant on his mobile telephone number. I telephoned the landline of C & R Fraser of the same residential address as the Applicant and left a voice message. I also telephoned a mobile telephone belonging to
Mr C. Fraser and left a message. No response was received to those phone calls.

[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.

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.

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

[11] As the Applicant did not comply with directions of the Commission issued on 22 September 2016; did not file any material in opposition to the application to dismiss and further did not respond to phone calls and emails made by the Commission, I have decided to determine the application on the papers.

[12] After considering all the material before me, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal pursuant to s.399A(1)(b) of the Act. An order giving effect to this decision will be issued today.

COMMISSIONER

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