Ryan Warner v Maca Ltd

[2022] FWC 978

[2022] FWC 978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ryan Warner
v

Maca Ltd

(U2021/12227)

DEPUTY PRESIDENT BINET PERTH, 11 MAY 2022

Application for an unfair dismissal remedy

1. On 18 November 2021, Mr Ryan Warner (Mr Warner) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Maca Ltd (MACA).

1. On 7 February 2022, MACA filed a Form F3 - Employer response to unfair dismissal application.

1. The Application was allocated to my Chambers for determination.

1. Directions were issued to parties on Tuesday 12 April 2022 which required Mr Warner to file his materials in relation to the merit of the Application by 4pm (AWST) Thursday 21 April 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

1. Mr Warner failed to file any materials in accordance with the Directions.

1. On Friday 22 April 2022, Chambers wrote to Mr Warner and reminded him that his materials in relation to the merits of his application were overdue.

1. On Friday 22 April 2022 MACA made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Warner failed to comply with the Directions (Dismissal Application).

1. Mr Warner was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) on Thursday 28 April 2022. Chambers advised Mr Warner that if he did not file submissions and evidence by 4pm (AWST) Thursday 28 April 2022 the Application would be dismissed pursuant to section 399A of the FW Act.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Warner by 4pm (AWST) Thursday 28 April 2022, or since.

1. 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.”

1. Mr Warner failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr Warner has still not filed any materials in support of his Application or in response to the Dismissal Application. Mr Warner has not sought an extension to file his materials in support of the Application or in response to the Dismissal Application. I am satisfied that Mr Warner has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of MACA and in the exercise of my discretion under section 399A of the FW Act I decided to dismiss the Application.

1. An Order[1] to this effect was issued on 29 April 2022.

DEPUTY PRESIDENT

[1] Print PR741055.

Printed by authority of the Commonwealth Government Printer

<PR741063>