Scott McDonald v Lcon Pty Ltd

[2016] FWC 2620

[2016] FWC 2620

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott McDonald
v
Lcon Pty Ltd
(U2015/17054)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 APRIL 2016

Application for relief from unfair dismissal.

[1] On 21 December 2016, Mr Scott McDonald made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr McDonald said his employment had been terminated by Lcon Pty Ltd on 2 December 2016.

[2] The matter was listed for conciliation on 12 February 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr McDonald was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 21 March 2016.

[4] Mr McDonald did not comply with this direction and the matter was listed for a non compliance hearing on 8 April 2016.

[5] Mr McDonald did not attend the non compliance hearing. Lcon made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr McDonald had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Lcon’s oral application.

[6] On 8 April 2016, Mr McDonald was sent correspondence informing him of Lcon’s section 399A application. Mr McDonald was directed to file submissions and other documentary material in respect of Lcon’s application by close of business, on 18 April 2016. Mr McDonald was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr McDonald did not file any material with the Commission.

[8] 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.”

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

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

[11] As Mr McDonald has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[12] The power to dismiss an application, if the non-compliance was unreasonable, is discretionary. Mr McDonald has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr McDonald’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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