Ryan Searls v LMS Energy Pty Ltd

[2014] FWC 435

[2014] FWC 435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Searls
v
LMS Energy Pty Ltd
(U2013/3159)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JANUARY 2014

Application for relief from unfair dismissal dismissed.

[1] On 20 September 2013, Mr Ryan Searls made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Searls’ employment had been terminated by LMS Energy Pty Ltd (LMS Energy) on 11 September 2013.

[2] The matter was the subject of conciliation on 7 November 2013. At conciliation Mr Searls advised that he would file a Notice of Discontinuance.

[3] On 2 December 2013, LMS Energy filed an application which sought the dismissal of Mr Searl’s application pursuant to s.399A(1)(c) of the Act. LMS Energy based their objection on Mr Searls not discontinuing his application after a settlement agreement.

[4] On 23 December 2013, Mr Searls was sent correspondence informing him of the Respondent’s s.399A application. Mr Searls was directed to file submissions and other documentary material in respect of LMS Energy’s application by close of business, on (6 January 2013. Mr Searls was advised that if he failed to comply with this direction, his application would be dismissed.

[5] Mr Searls did not file any material with the Commission.

[6] 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.

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

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

[9] After considering all the material, Mr Searls’ 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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