Singh v Ron Finemore Transport Services Pty Ltd

[2016] FWC 392

[2016] FWC 392

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Varinder Singh
v
Ron Finemore Transport Services Pty Ltd
(U2015/13045)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 20 JANUARY 2016
Application for relief from unfair dismissal.

[1]        On 22 September 2015, Mr Varinder Singh made an application for remedy for unfair

dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Singh’s employment had

been terminated by Ron Finemore Transport Services Pty Ltd on 7 September 2015.

[2]        The matter was the subject of conciliation however, the matter was not resolved.

[3]        Commission staff attempted to contact Mr Singh on 16 November 2015 to confirm if

the matter had resolved or if he wanted to proceed to hearing.

[4]        Mr Singh did not contact the Commission to confirm whether the matter should

proceed.
[5]	Commission staff attempted to contact Mr Singh on 23 November 2015 and a

voicemail message was left on Mr Singh’s mobile telephone advising that a notice of listing

and directions had been dispatched to the parties, listing the matter for hearing.

[6]        Mr Singh was directed to file an outline of submissions, any witness statements and

other documentary material he wished to rely on by noon, on 7 December 2015.

[7]        Commission staff contacted Mr Singh on 7 December 2015 to confirm that materials

in support of his application were due to be filed that day. Mr Singh advised that he had not

received the notice of listing or directions. Commission staff advised Mr Singh that the notice

of listing and directions would be forwarded to him by email again and advised Mr Singh that

if a request for an extension of time to file his materials was not received by the Commission,

the matter would be listed for a non compliance hearing.

[8]        Commission staff attempted to contact Mr Singh on 8 December 2015 and a voicemail

message was left on Mr Singh’s mobile phone advising him that a request for an extension of

time had not been received and that the matter would be listed for a non compliance hearing.

[2016] FWC 392

[9]        The matter was listed for a non compliance hearing before me on 11 December 2015.

[10]      Mr Singh did not attend the non compliance hearing. Ron Finemore Transport made

an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Singh

had failed to comply with the direction of the Fair Work Commission. I waived compliance

with the Fair Work Commission Rules 2013 and accepted Rob Finemore Transport’s oral

application.

[11]      On 11 December 2015, Mr Singh was sent correspondence informing him of Ron

Finemore Transport’s section 399A application. Mr Singh was directed to file submissions

and other documentary material in respect of Ron Finemore Transport’s application by close

of business, on 21 December 2015. Mr Singh was advised that if he failed to comply with this

direction, his application would be dismissed.

[12]      Mr Singh did not file any material with the Commission.

[13]      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.

[14]      Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act.

[15]      As Mr Singh did not file any material in opposition to the application to dismiss, I will

determine the application on the papers.

[16]      As Mr Singh has provided no explanation for his failure to comply with directions, I

find that his failure was unreasonable.

[17]      The power to dismiss an application if the non-compliance was unreasonable is

discretionary. Mr Singh 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
[2016] FWC 392

exercise my discretion and dismiss Mr Singh’s application. An order giving effect to this

decision will be issued today.

DEPUTY PRESIDENT

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