Rohan McLachlan v Milestone Chemicals Australia Pty Ltd T/A Milestone Chemicals

[2017] FWC 5090

[2017] FWC 5090

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rohan McLachlan
v
Milestone Chemicals Australia Pty Ltd T/A Milestone Chemicals
(U2017/8265)

COMMISSIONER BISSETT MELBOURNE, 3 OCTOBER 2017

Application for an unfair dismissal remedy – s.399A application to dismiss.

[1] On 1 August 2017 Mr Rohan McLachlan (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he said he had been unfairly dismissed by Milestone Chemicals Australia Pty Ltd T/A Milestone Chemicals (the Respondent).

[2] The application was listed for a Conciliation conference on Friday 25 August 2017 where it failed to settle.

[3] Directions for the filing of submissions and witness evidence were issued on 30 August 2017. The direction required the Applicant to file with the Commission and serve on the Respondent an outline of argument, statement of evidence and document list by noon Monday 18 September 2017.

[4] On Thursday 14 September 2014 the Applicant was sent an automated text message reminding him that his submissions were due on 18 September 2017.

[5] The Applicant failed to file his submissions and related material by the required time on 18 September 2017. Later that day the Applicant was contacted by Commission staff and reminded that his submissions were due at noon and advised that if he did not file his submissions that day he would need to seek an extension of time within which to do so. The Applicant made no request for an extension of time.

[6] On 19 September 2017 correspondence was sent to the Applicant reminding him that his submissions were due on 18 September 2017. The Applicant was advised that if he did not contact the Commission his application would be listed for a non-compliance hearing on Thursday 21 September 2017. The Applicant did not contact the Commission and the matter was subsequently listed for Non-compliance Hearing on 21 September 2017. The Applicant failed to attend.

[7] At the Non-compliance Hearing the Respondent made an application that the application for relief from unfair dismissal be dismissed pursuant to s.399A of the FW Act on the grounds that the Applicant had failed to comply with the directions issued by the Commission.

[8] Section 399A of the Act provides:

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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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] On 21 September 2017 a letter was sent to the Applicant advising him that he had until Thursday 28 September 2017 to file submissions with the Commission and serve those submissions on the Respondent as to why his application should not be dismissed pursuant to s.399A of the FW Act. Despite a follow up phone call the Applicant has failed to respond to this correspondence from the Commission.

[10] I am satisfied that the Applicant has failed to comply with a direction of the Commission relating to his application. That direction went to the date by which he was required to file and serve material in relation to his application for unfair dismissal. Further, I am satisfied that the Applicant failed to attend a Non-compliance Hearing in relation to his application.

[11] I have therefore decided to dismiss the application of the Applicant. An order 1 to this effect will be issued with this decision.

COMMISSIONER

<Price code A, PR596492>

 1   PR596494.

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