Nigel Galvin v Ora Banda Mining Ltd

[2023] FWC 3313

[2023] FWC 3313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Nigel Galvin
v

Ora Banda Mining Ltd

(U2023/10035)

DEPUTY PRESIDENT BINET PERTH, 15 DECEMBER 2023

Application for an unfair dismissal remedy

1. On 13 October 2023, Mr Nigel Galvin (Mr Galvin) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Ora Banda Mining Ltd (OBM).

1. On 15 November 2023, the Application was allocated to my Chambers for determination.

1. On 16 November 2023, OBM filed a Form F3 - Employer response to unfair dismissal application raising the Jurisdictional Objection that the Application is out of time.

1. Directions were issued to parties on 23 November 2023 (Directions).  The Directions required Mr Galvin to file by 4pm (AWST) Monday 4 December 2023 his materials in relation to the question of whether the FWC should grant him an extension of time to file the Application. The parties were advised that compliance with the Directions was mandatory.

1. Mr Galvin failed to file the materials by the required date and time as set out in the Directions.

1. On Monday 5 December 2023, Chambers wrote to Mr Galvin and reminded him that his materials in relation his application for an extension of time were overdue.

1. On Thursday 7 December 2023, OBM made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Galvin failed to comply with the Directions (Dismissal Application).

1. On Thursday 7 December 2023, Mr Galvin was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Monday 11 December 2023. Chambers advised Mr Galvin that if he did not file any such submissions or evidence by 4pm (AWST) Monday 11 December 2023, the Application would be dismissed pursuant to section 399A of the FW Act.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Galvin by 4pm (AWST) Monday 11 December 2023.

1. Section 399A of the FW Act provides:

“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 other 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.”

1. Mr Galvin failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision, Mr Galvin has still not filed any materials in support of the Application or in response to the Dismissal Application. Mr Galvin has not sought an extension to file his materials in support of the Application or in response to the Dismissal Application. I am satisfied that Mr Glavin has unreasonably failed to comply with directions of the FWC relating to this Application. On the application of OBM and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application.

1. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Print PR769296.

Printed by authority of the Commonwealth Government Printer

<PR769297>