Semisi (James) Taualii v Star Track Express Pty Limited T/A Star Track

[2016] FWC 1997

[2016] FWC 1997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Semisi (James) Taualii
v
Star Track Express Pty Limited T/A Star Track
(U2016/4016)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 31 MARCH 2016

Application for relief from unfair dismissal.

[1] On 24 January 2016, Mr Semisi (James) Taualii made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Mr Taualii’s employment had been terminated by Star Track Express Pty Limited T/A Star Track on 6 January 2016.

[2] The matter was listed for conciliation on 7 March 2016 however it could not take place as Mr Taualii was not contactable. Consequently, directions were issued and the matter was listed for hearing in June 2016.

[3] On 11 March 2016, the Star Track filed an objection to the application and sought the dismissal of Taualii’s application. Star Track based their objection on grounds which included:

(a) failure to comply with directions issued by the Commission on 27 January 2016; and

(b) failure to attend the conciliation on 7 March 2016.

[1] On 17 March 2016, Mr Taualii was sent correspondence informing him of Star Track’s section 399A application. Mr Taualii was directed to file submissions and other documentary material in respect of Star Track’s application by close of business, on 29 March 2016. Mr Taualii was advised that if he failed to comply with this direction, his application would be dismissed.

[1] Mr Taualii did not file any material with the Commission.

[2] 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.

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

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

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

[2] The power to dismiss an application, if the non-compliance was unreasonable, is discretionary. Attendance at a conciliation conference is not mandatory, though the normal course for a party who does not wish to participate is to provide that advice to the conciliator and the other party prior to the conciliation. While Mr Taualii did not respond to the correspondence regarding Star Track’s s.399A application, I am not prepared to dismiss his application at this time as a failure to attend a conciliation conference is not evidence that he is unwilling to pursue his claim.

[3] Mr Taualii is required to file material in support of his claim by 11 April 2016. If he fails to comply with that direction or fails to seek a variation to the direction prior to 11 April 2016, his application will be dismissed without further notice to him.

DEPUTY PRESIDENT

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