Shannon Hourigan v Booth Transport Pty Ltd T/A Booth Transport

[2017] FWC 2530

[2017] FWC 2530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shannon Hourigan
v
Booth Transport Pty Ltd T/A Booth Transport
(U2017/2061)

COMMISSIONER LEE MELBOURNE, 12 MAY 2017

Application for an unfair dismissal remedy - application dismissed.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Shannon Hourigan (the Applicant) claims that he was unfairly dismissed from his employment with Booth Transport Pty Ltd T/A Booth Transport (the Respondent).

[2] On 23 February 2017, the Applicant made an application for remedy for unfair dismissal.

[3] On 8 March 2017, the Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application, raising jurisdictional objections that the application is lodged out of time and that the Applicant’s employment does not meet the minimum employment period.

[4] The matter was listed for conciliation at 9:15am on Wednesday, 29 March 2017 and was not settled.

[5] On 4 April 2017 the matter was listed for Extension of Time and Jurisdiction (Minimum Employment Period – Other Business) hearing at 9.30am on 28 April 2017. A Notice of Listing was sent to the Applicant via express post which contained directions for the Applicant to file an outline of argument: extension of time, statement of evidence and document list by no later than noon on Thursday, 13 April 2017 and an outline of argument: objections and any other material it wished to file in reply by no later than noon on Monday, 24 April 2017.

[6] The Applicant did not comply with these directions. The Respondent filed materials in accordance with the directions on 13 April 2017 which were served on the Applicant via express post. The Fair Work Commission (the Commission) contacted the Applicant via telephone on 13 April 2017 regarding the filing of submissions and he advised that he would post submissions to the Commission shortly.

[7] On 19 April 2017 the Commission left a voice message with the Applicant asking him to contact the Commission in relation to his failure to comply with directions. On 20 April 2017 the Applicant advised the Commission via telephone that he wished to proceed with the application, however he was unsure on what needed to be done. The Applicant was advised where he could seek assistance and it was explained that the matter was listed for hearing on Friday, 28 April 2017.

[8] On 21 April 2017 an amended Notice of Listing was sent to the Applicant via express post. The time of the hearing was amended from 9:30am to not before 11:45am on the same date Friday, 28 April 2017. The amended Notice of Listing contained the directions for materials to be filed by 24 April 2017, as outlined above.

[9] The Applicant did not attend the jurisdiction hearing on Friday, 28 April 2017. The Respondent attended the Commission and made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with directions of the Commission and failed to attend a hearing held by the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[10] On 28 April 2017, the Applicant was sent correspondence informing him of the Respondent’s section 399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, on Friday, 5 May 2017. The Applicant was advised that if he failed to file material, his application would be dismissed.

[11] The Applicant did not file any material with the Commission.

[12] 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.

[13] Section 593 (1) of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[15] The power to dismiss an application if the non compliance was unreasonable is discretionary. The Applicant has not shown a willingness to prosecute his case. The Applicant failed to attend a hearing of the Commission, failed to comply with directions of the Commission and has not provided an explanation for his failure to comply with directions. In these circumstances, I will exercise my discretion under s.399A(1)(a) and (b) of the Act and dismiss the Applicant’s application.

[16] An order will be issued concurrently with this decision.

COMMISSIONER

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