Paul Winfield v Southern Cross Automotive Group Pty Ltd

[2013] FWC 9461

[2013] FWC 9461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Winfield
v
Southern Cross Automotive Group Pty Ltd
(U2013/3631)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 28 June 2013, Mr Paul Winfield made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Winfield’s employment had been terminated by Southern Cross Automotive Group Pty Ltd (Southern Cross) on 18 June 2013.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Winfield was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 7 October 2013.

[4] Mr Winfield did not comply with this direction and the matter was listed for a non compliance hearing on 11 October 2013.

[5] Further directions were forwarded to parties and Mr Winfield was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 24 October 2013.

[6] Mr Winfield did not comply with the amended direction and the matter was again listed for a non compliance hearing on 1 November 2013.

[7] Amended directions were again forwarded to parties and Mr Winfield was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 13 November 2013.

[8] On 13 November 2013, the Respondent filed an objection to the application and sought the dismissal of Mr Winfield’s application. Southern Cross based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the non compliance hearing.

[9] On 13 November 2013, Mr Winfield was sent correspondence informing him of the Respondent’s s.399A application. Mr Winfield was directed to file submissions and other documentary material in respect of Southern Cross’s application by close of business, on 27 November 2013. Mr Winfield was advised that if he failed to comply with this direction, his application would be dismissed.

[10] Mr Winfield did not file any material with the Commission.

[11] 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.

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

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

[14] After considering all the material, Mr Winfield’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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