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

Printed by authority of the Commonwealth Government Printer

Shane Holden brought an application against Paradise Landscaping (NT) Pty Ltd for relief from unfair dismissal and non-compliance with an order under section 399A. The matter was heard in the Fair Work Commission. The central dispute was whether the respondent had complied with an order to reinstate Mr. Holden to his position and, if not, whether the applicant was entitled to relief from the dismissal.

The court had to determine if the respondent had complied with the reinstatement order, and if not, whether the non-compliance warranted relief from the dismissal under section 399A. The applicant argued that the respondent had failed to reinstate him as per the order, which resulted in unfair dismissal. The respondent contended that there were mitigating circumstances affecting compliance, and the dismissal was not unfair.

The Fair Work Commission found that the respondent had not complied with the reinstatement order, leading to an unfair dismissal. The Commission noted that the respondent's failure to reinstate was not due to any fault of the applicant and there were no mitigating circumstances that could excuse the non-compliance. Therefore, the application for relief from unfair dismissal was granted. The court ordered the respondent to reinstate Mr. Holden and compensate him for the period of non-compliance.

Shane Holden v Paradise Landscaping (NT) Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established