Shane Holden v Paradise Landscaping (NT) Pty Ltd

[2019] FWC 1736

[2019] FWC 1736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Holden
v
Paradise Landscaping (NT) Pty Ltd
(U2018/12358)

COMMISSIONER WILSON MELBOURNE, 18 MARCH 2019

Application for relief from unfair dismissal - s.399A application for non-compliance with an order - application granted.

[1] On 29 November 2018, Mr Shane Holden made an application for unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). Mr Holden’s employment had been terminated by Paradise Landscaping (NT) Pty Ltd (‘Paradise Landscaping’) on 8 November 2018.

[2] The matter was listed for an initial conciliation on 22 January 2019. While Mr Holden attended the conciliation the matter did not settle.

[3] On 29 January 2019 directions for filing were issued, with Mr Holden directed to file an outline of submissions and any evidence he wished to rely on by close of business 22 February 2019. No submissions were received from the Applicant.

[4] On 7 March 2019 Mr Holden was contacted by email regarding his overdue submissions, directing him to file any submissions and documents immediately.

[5] On the same day the matter was the subject of a member assisted conciliation which the Applicant did not attend. Mr Holden was called three times at 1:52PM, 1:54PM and 1:55 PM all of which went to voice message. A message was left advising that the conciliation would continue in his absence. During the conciliation I moved to a hearing whereby I accepted Paradise Landscaping’s application to have the application dismissed under s.399A of the Act due to Mr Holden’s failure to comply with the Directions of the Commission. A formal application to this effect was provided by email from the Respondent on 11 March 2019.

[6] On 12 March 2019 the Respondent’s application to dismiss the matter was sent to the Applicant via email and registered post. The registered post tracker confirmation shows that Mr Holden received this correspondence at 2:18 PM ACST on Thursday, 14 March 2019.

[7] Mr Holden was given until close of business Friday, 15 March 2019 to file materials in response to the Respondent’s application to dismiss the matter.

[8] No submissions were received from Mr Holden.

[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.

....

(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] I am satisfied that Paradise Landscaping’s objection made on 7 March 2019 is an application to have the matter dismissed for Mr Holden’s failure to comply with a direction of the Commission.

[11] On 12 March 2019, Mr Holden was sent correspondence by email and registered post informing him of the Respondent’s s.399A application. Mr Holden was directed to file submissions providing reasons, evidence or other documentary material as to why the Commission should not dismiss the application for unfair dismissal remedy pursuant to s.399A of the Act by close of business, on 15 March 2019. The correspondence stated that if Mr Holden failed to comply with this direction, his application would be dismissed.

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

[13] In the absence of advice from Mr Holden to the contrary, I find this failure to be unreasonable. Accordingly, there are no grounds upon which I would be persuaded to not exercise my discretion to dismiss Mr Holden’s application. His application for unfair dismissal remedy will be dismissed, and an Order will be issued in conjunction with this decision to that effect.

COMMISSIONER

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