Nicholas Venville v Bayswater Mitre 10 Trade Centre

[2016] FWC 2722

[2016] FWC 2722

The attached document replaces the document previously issued with the above code on 2 May 2016.

The paragraph numbering has been corrected.

Katrina Alviano

Associate to Deputy President Gooley

Dated: 3 May 2016

[2016] FWC 2722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Venville
v
Bayswater Mitre 10 Trade Centre
(U2016/4216)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MAY 2016

Application for relief from unfair dismissal.

[1] On 2 February 2016, Mr Venville made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Venville’s employment had been terminated by Bayswater Mitre 10 Trade Centre on 15 January 2016.

[2] The matter was listed for conciliation on 18 March 2016, however it could not take place. Consequently, the matter was listed for hearing and directions were issued to file an outline of submissions, witness statements and other documentary material.

[3] On 23 March 2016, Mitre 10 requested a further conciliation. On the same day, Mr Venville objected to further conciliation and requested that the matter proceed to arbitration.

[4] Mr Venville did not comply with the Commission’s directions and failed to file any material to support his claim by 11 April 2016.

[5] On 14 April 2016, in response to the Commission’s enquiry regarding the filing of his material, Mr Venville told the Commission staff member that he was at work and that he will contact the Commission when he finishes work.

[6] On 19 April 2016, Mitre 10 filed an objection to the application and sought the dismissal of Mr Venville’s application pursuant to s.399A of the Act. Mitre 10 based their objection on Mr Venville’s failure to comply with directions and failure to attend the conciliation conference.

[7] On 19 April 2016, Mr Venville was sent correspondence informing him of Mitre 10’s application. Mr Venville was directed to file submissions and other documentary material in respect of Mitre 10’s application by noon, on 29 April 2016. Mr Venville was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Venville 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 by the Act.

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

[12] As Mr Venville has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[13] The power to dismiss an application, if the non-compliance was unreasonable, is discretionary. Mr Venville has failed to contact the Commission and respond to the Commission’s correspondence. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Venville’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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