Robert Kidd v Chep Australia T/A Chep

[2016] FWC 158

[2016] FWC 158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Kidd
v
CHEP Australia T/A CHEP
(U2015/13281)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 30 September 2015, Mr Robert Kidd made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Kidd’s employment had been terminated by CHEP Australia Ltd T/A CHEP on 21 September 2015.

[2] The matter was listed for conciliation on 2 November 2015 however it could not take place). Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Kidd was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 30 November 2015.

[4] On 16 December 2015, CHEP filed an objection to the application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Kidd had failed to comply with the direction of the Fair Work Commission.

[5] On 16 December 2015, Mr Kidd was sent correspondence informing him of CHEP’s section 399A application. Mr Kidd was directed to file submissions and other documentary material in respect of CHEP’s application by close of business, on 28 December 2015. Mr Kidd was advised that if he failed to comply with this direction, his application would be dismissed.

[6] Mr Kidd did not file any material with the Commission.

[7] 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.

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

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

[10] Given Mr Kidd has provided no explanation for his failure to comply with the directions, I find his non compliance to be unreasonable.

[11] Further, as Mr Kidd has made no contact with the Commission since his application was lodged, I will exercise my discretion to dismiss the application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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