Scott Fulton v Mitcon Projects

[2016] FWC 7636

[2016] FWC 7636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Fulton
v
Mitcon Projects
(U2016/8572)

COMMISSIONER BISSETT MELBOURNE, 7 NOVEMBER 2016

Application for relief from unfair dismissal – s.399A application to dismiss.

[1] On 26 July 2016 Mr Scott Fulton (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal. The Applicant’s employment had been terminated by the Mitcon Projects (the Respondent) on 5 July 2016.

[2] The matter was the subject of conciliation where it was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by the close of business, 20 September 2016. The Applicant failed to comply with this direction.

[4] My Associate attempted to contact the Applicant regarding his failure to file submissions and materials by the required date, however the Applicant could not be reached.

[5] On 28 September 2016 the Respondent filed an application for the application to be dismissed pursuant to s.399A of the Act on the grounds that the Applicant failed to comply with a direction of the Commission relating to the application.

[6] On 5 October 2016 I sent correspondence to the Applicant to file any submissions he wished to make as to why his application should not be dismissed by the close of business 14 October 2016 otherwise his matter would be dismissed.

[7] On 14 October 2016 the Applicant contacted the Commission and advised that he would file his submissions and materials by 9.00am on Monday 17 October 2016. The Applicant did not file any material with the Commission.

[8] On 17 October 2016 the Applicant was advised that he had until 9.00am on Wednesday, 19 October 2016 to file his submissions or his application would be dismissed. The Applicant once again did not file any material with the Commission.

[9] 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.

[10] Taking into account the provisions of s.399A and specifically s.399A(2), I am satisfied that the Respondent’s application filed on 28 September 2016 is an application to have the matter dismissed for the Applicant’s failure to meet the provisions of ss.399A(1)(a) or (b).

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[12] After considering all the material, I have decided to dismiss the Applicant’s application for relief from unfair dismissal. An order giving effect to this decision will be issued today.

COMMISSIONER

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