Patrick McInerney v Aplus I.T. Services Pty Ltd

[2014] FWC 1911

[2014] FWC 1911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick McInerney
v
Aplus I.T. Services Pty Ltd
(U2013/12140)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 MARCH 2014

Application for relief from unfair dismissal.

[1] On 2 August 2013, Mr Patrick McInerney made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr McInerney’s employment had been terminated by Aplus I.T. Services Pty Ltd (Aplus) on 12 July 2013.

[2] The matter was the subject of conciliation on 26 September 2013 however, the matter was not resolved.

[3] Aplus made an objection to Mr McInerney’s application on the basis that Mr McInerney was not an employee. However, Commissioner Roe on 28 November 2013 determined that he was.

[4] The matter proceeded to be listed for arbitration conference/hearing and Mr McInerney was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 20 January 2014.

[5] Mr McInerney requested an extension to file his submissions. A period of time was granted and Mr McInerney was required to file his material by 3 February 2014. Upon further request, a further period of time was granted and Mr McInerney was required to file his material by 7 February 2014.

[6] Mr McInerney did not comply with this direction and the matter was listed for a non compliance hearing before me on 14 February 2014.

[7] Mr McInerney did not attend the non compliance hearing. Aplus made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr McInerney had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Commissioner Rules 2013 and accepted Aplus’ oral application.

[8] On 18 February 2014, Mr McInerney was sent correspondence informing him of the Respondent’s s.399A application. Mr McInerney was directed to file submissions and other documentary material in respect of Aplus’ application by close of business, 28 February 2014. Mr McInerney was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr McInerney did not file any material with the Commission.

[10] 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.

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[13] After considering all the material, Mr McInerney’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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