Ryan Pearson v Skilled Group Ltd

[2013] FWC 10109

[2013] FWC 10109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Pearson
v
Skilled Group Ltd
(U2013/13609)

COMMISSIONER DEEGAN CANBERRA, 20 DECEMBER 2013

Application for unfair dismissal remedy - s.399A application.

[1] On 16 September 2013, Mr Ryan Pearson (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been unfairly dismissed by Skilled Group Ltd (the employer).

[2] The matter was listed for telephone conciliation on 1 November 2013 but this could not take place as the applicant was unable to be contacted. His mobile number, provided on Form F2, appeared to have been disconnected. The matter was accordingly referred for formal proceedings.

[3] Directions were issued on 11 November 2013 requiring the applicant to file with the Commission and serve on the respondent an outline of submissions and evidentiary materials in support of his application by no later than 5pm Monday, 9 December 2013. These Directions were sent by express post to the applicant’s address provided on Form F2. The applicant failed to comply with these directions.

[4] On 10 December 2013, the Commission called the applicant’s mobile number and was advised by an Optus message that the number had been disconnected.

[5] On 12 December 2013, the employer lodged an application pursuant to s.399A of the Act requesting that the matter be dismissed on the basis that the applicant had failed to comply with the directions. The s.399A application was then set down for hearing and a notice of listing was issued which noted that the applicant must attend the hearing in person and that failure to do so will result in the dismissal of the unfair dismissal application. The notice was sent to the applicant by express post.

[6] The hearing subsequently took place on 20 December 2013 and the applicant failed to attend.

[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.

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.

[8] As a consequence of the applicant’s failure to comply with the directions issued in this matter and to attend the hearing of the s.399A application, I have decided to dismiss his application for unfair dismissal remedy. An order [PR546207] dismissing the application is published separately.

Appearances:

No appearance for the Applicant.

Mr P. Borobokas, for the Respondent (by telephone)

Hearing details:

2013.

Canberra:

December 20.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR546196>