Nicholas Hand v Outback Tour Services Pty Ltd T/A Outback Tour Services

[2016] FWC 8930

[2016] FWC 8930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Hand
v
Outback Tour Services Pty Ltd T/A Outback Tour Services
(U2016/11638)

COMMISSIONER WILSON MELBOURNE, 16 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 22 September 2016, Mr Nicholas Hand made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Hand’s employment had been terminated by Outback Tour Services Pty Ltd (the Respondent) on 6 May 2016.

[2] The Respondent on 3 October 2016, raised a jurisdictional objection on the basis that the application was lodged more than 21 days after the dismissal took effect. Consequently, directions were issued on 24 October 2016 and the matter was listed for hearing.

[3] Mr Hand was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by close of business 7 November 2016.

[4] Mr Hand did not comply with this direction. On 15 November 2016 Mr Hand was sent an email requesting an explanation as to why he had not complied with the Directions issued by the Fair Work Commission (the Commission). A response was required by close of business Monday 21 November 2016.

[5] To date Mr Hand has not filed any material, or been in contact with the Commission with respect to filing the required documentation.

[6] On 21 November 2016 the Respondent sent an email and sought the dismissal of Mr Hand’s application. on grounds which include:

(a) failure to comply with the directions of the Commission; and

(b) failure to lodged the unfair dismissal application within the specified time frame.

[7] 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.

[8] I am satisfied that the Respondent’s objection filed on 21 November 2016 is an application to have the matter dismissed for Mr Hand’s failure to comply with a direction of the Commision. I have decided to waive compliance with the Fair Work Commission Rules 2013 (the Rules) to the extent necessary.

[1] On 23 November 2016, Mr Hand was sent correspondence by email and registered post informing him of the Respondents section 399A application. Mr Hand was directed to file submissions providing reasons, evidence or other documentary material as to why the Commission should not dismiss the Application for Unfair Dismissal remedy pursuant to s.399A of the Act by close of business, on 5 December 2016. The correspondence stated that if Mr Hand failed to comply with this direction, his application would be dismissed.

[2] As Mr Hand did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[3] In the absence of advice from Mr Hand to the contrary, I find this failure to be unreasonable. Accordingly there are no grounds upon which I would be persuaded to not exercise my discretion to dismiss Mr Hand’s application. His application for unfair dismissal remedy will be dismissed, and an Order will be issued in conjunction with this decision to that effect.

COMMISSIONER

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