Ronan Hall v Byford Tyre Service

[2021] FWC 1455

[2021] FWC 1455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ronan Hall
v
Byford Tyre Service
(U2021/194)

DEPUTY PRESIDENT BINET PERTH, 30 MARCH 2021

Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.

[1] On 8 January 2021, Mr Ronan Hall (Mr Hall) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by Byford Tyre Service (BTS).

[2] On 14 January 2021, BTS filed a Form F3 - Employer response to unfair dismissal application.

[3] The matter was listed for a staff conciliation on 3 February 2021 but Mr Hall failed to participate.

[4] The Application was then allocated to my Chambers for determination.

[5] On 4 March 2021, the parties were issued with directions which required Mr Hall to file and serve on BTS by 4pm on Thursday 11 March 2021 submissions and evidence in relation to the merits of the Application (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[6] Mr Hall failed to file any materials in accordance with the Directions.

[7] On 12 March 2021 BTS sent an email to Chambers attaching an application pursuant to section 399A of the FW Act (Dismissal Application). BTS submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Hall unreasonably failed to comply with a direction of the Commission when he failed to file his materials in accordance with the Directions.

[8] On 12 March 2021, Mr Hall was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on 16 March 2021.

[9] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by 16 March 2021, or by the date of this Decision.

[10] Section 399A of the FW 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 other 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.”

[11] Mr Hall failed to file the materials he was directed to file by the dates specified in the Directions, or at all. Mr Hall failed to seek an extension to file his materials. As at the date of this decision Mr Hall has still not filed any materials in support of his Application or in opposition to the Dismissal Application. I am satisfied that Mr Hall has unreasonably failed to comply with directions of the FWC relating to this Application.

[12] On application of BTS and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An Order to this effect [PR727863] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727862>