Robert Beattie v Ji & Kik Lugg Family Trust T/A Lugg Glass Pty Ltd

[2014] FWC 3478

[2014] FWC 3478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Beattie
v
JI & KIK Lugg Family Trust T/A Lugg Glass Pty Ltd
(U2013/17781)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 MAY 2014

Application for relief from unfair dismissal.

[1] On 24 December 2013, Mr Robert Beattie made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Beattie’s employment had been terminated by JI & KIK Lugg Family Trust T/A Lugg Glass Pty Ltd (Lugg Glass) on 3 December 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 Beattie was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 April 2014.

[4] Directions were amended and Mr Beattie was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 28 April 2014.

[5] Mr Beattie did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 16 May 2014.

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

[7] On 16 May 2014, Mr Beattie was sent correspondence informing him of Lugg Glass’ s.399A application. Mr Beattie was directed to file submissions and other documentary material in respect of Lugg Glass’ application by close of business, on 23 May 2014. Mr Beattie was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Beattie did not file any material with the Commission.

[9] 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.

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

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

[12] After considering all the material, Mr Beattie’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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