Paikea v Vinidex Pty Limited

[2016] FWC 2964

[2016] FWC 2964

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Tawa Paikea
v
Vinidex Pty Limited
(U2016/4279)
COMMISSIONER WILSON	MELBOURNE, 12 MAY 2016
Application for relief from unfair dismissal.

[1]        On 4 February 2016, Mr Tawa Paikea made an application for remedy for unfair

dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Paikea’s employment

had been terminated by Vinidex Pty Limited on 21 January 2016.

[2]        The matter was listed for conciliation on 17 March 2016 however it could not take

place. Consequently, directions were issued and the matter was listed for hearing.

[3]        Mr Paikea was directed to file an outline of submissions, any witness statements and

other documentary material he wished to rely on by noon, on 26 April 2016.

[4]        Mr Paikea did not comply with this direction and the matter was listed for a non

compliance hearing before Commissioner Bissett on 29 April 2016.

[5]        Mr Paikea did not attend the non compliance hearing. Vinidex made an oral

application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Paikea had

failed to comply with the direction of the Fair Work Commission. Commissioner Bissett

waived compliance with the Fair Work Commission Rules 2013 and accepted Vinidex’ oral

application.

[6]        On 29 April 2016, Mr Paikea was sent correspondence informing him of Vinidex’

section 399A application. Mr Paikea was directed to file submissions and other documentary

material in respect of Vinidex’ application by close of business, on 9 May 2016. Mr Paikea

was advised that if he failed to comply with this direction, his application would be dismissed.

[7]        Mr Paikea did not file any material with the Commission.

[2016] FWC 2964

[8]        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.

[9]        Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act.

[10]      As Mr Paikea did not file any material in opposition to the application to dismiss, I

will determine the application on the papers.

[11]      As Mr Paikea has provided no explanation for his failure to comply with directions, I

find that his failure was unreasonable.

[12]      The power to dismiss an application if the non-compliance was unreasonable is

discretionary. Mr Paikea has failed to respond to the many attempts by the Commission to

contact him. He has shown no willingness to prosecute his case. In those circumstances, I

will exercise my discretion and dismiss Mr Paikea’s application. An order giving effect to

this decision will be issued today.

COMMISSIONER

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