Simon Haywood v Redfox Galaxy Pty Ltd T/A Bakers Delight Langwarrin

[2020] FWC 2379

[2020] FWC 2379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Haywood
v
Redfox Galaxy Pty Ltd T/A Bakers Delight Langwarrin
(U2020/1155)

COMMISSIONER BISSETT MELBOURNE, 7 MAY 2020

Application for an unfair dismissal remedy.

[1] On 4 February 2020, Mr Haywood made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Haywood’s employment had been terminated by Redfox Galaxy Pty Ltd T/A Bakers Delight Langwarrin (Bakers Delight) on 29 January 2020.

[2] The matter was listed for conciliation on 25 February 2020 however it could not take place. Consequently, directions were issued and the matter was listed for hearing on 9 April 2020.

[3] Bakers Delight was directed to file an outline of submissions, any witness statements and other documentary material it wished to rely on by noon on 16 March 2020 and Mr Haywood to file by noon on 26 March 2020.

[4] Bakers Delight requested an extension to file submissions and an adjournment of the hearing date as it was listed during the Passover holidays. A further period of time was granted and Bakers Delight was directed to file by 31 March 2020 and Mr Haywood was directed to file by 10 April 2020. The hearing date was changed to 24 April 2020.

[5] Mr Haywood did not comply with the directions and the matter was listed for a non- compliance hearing before Deputy President Clancy on 17 April 2020.

[6] Mr Haywood did not attend the non-compliance hearing. Bakers Delight made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Haywood had failed to comply with the direction of the Fair Work Commission. Deputy President Clancy waived compliance with the Fair Work Commission Rules 2013 and accepted Bakers Delight’s oral application.

[7] On 17 April 2020, Mr Haywood was sent correspondence informing him of Bakers Delight’s section 399A application. Mr Haywood was directed to file submissions and other documentary material in respect of Bakers Delight’s application by close of business, on 24 April 2020. Mr Haywood was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Haywood did not file any material with the Commission.

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

[11] As Mr Haywood did not file any material in opposition to the application to dismiss, I will determine the application on the papers. As Mr Haywood 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 Haywood 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 Haywood’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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