Paikea v Vinidex Pty Limited Summary

[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

Printed by authority of the Commonwealth Government Printer

In the matter of Paikea v Vinidex Pty Limited, Mr Tawa Paikea sought relief from unfair dismissal from the Fair Work Commission, pursuant to section 394 of the Fair Work Act 2009. His employment had been terminated by Vinidex Pty Limited on 21 January 2016. The matter was initially listed for conciliation on 17 March 2016, but this did not take place and the matter was listed for a hearing. Mr Paikea was directed to file an outline of submissions and other material by 26 April 2016 but failed to comply. The matter was listed for a non-compliance hearing before Commissioner Bissett on 29 April 2016, but Mr Paikea did not attend. Vinidex made an oral application under section 399A of the Act that Mr Paikea's matter be dismissed as he had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett accepted this application and Mr Paikea was directed to file submissions in respect of this application by 9 May 2016, but he did not do so.

The issues for the Commission were whether Mr Paikea's failure to comply with the directions was unreasonable and whether the Commission should exercise its discretion to dismiss the application. The Commission found that Mr Paikea had failed to provide any explanation for his non-compliance, and therefore, his failure was unreasonable. The power to dismiss an application under section 399A of the Act is discretionary and the Commission found that in the circumstances, it would exercise its discretion and dismiss Mr Paikea's application.

The final orders of the Commission were that Mr Paikea's application for relief from unfair dismissal be dismissed. The Commission found that Mr Paikea had failed to respond to the Commission's attempts to contact him and had shown no willingness to prosecute his case. Therefore, in the exercise of its discretion, the Commission dismissed the application. An order giving effect to this decision was issued on the same day.

Paikea v Vinidex Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established