Stephen Reeves v DB Schenker

[2015] FWC 4386

[2015] FWC 4386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Reeves
v
DB Schenker
(U2015/2864)

COMMISSIONER WILSON MELBOURNE, 6 JULY 2015

Application for relief from unfair dismissal.

[1] On 5 February 2015, Mr Stephen Reeves made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Reeves’ employment had been terminated by DB Schenker on 30 January 2015.

[2] The matter was listed for conciliation on 4 March 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Reeves was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 11 May 2015.

[4] On 14 May 2015, the DB Schenker filed an objection to the application and sought the dismissal of Mr Reeves’s application. DB Schenker based their objection on the ground that Mr Reeves had failed to comply with directions of the Fair Work Commission.

[5] On 14 May 2015, Mr Reeves was sent correspondence informing him of DB Schenker’s section 399A application. Mr Reeves was directed to file submissions and other documentary material in respect of DB Schenker’s application by close of business, on 21 May 2015. Mr Reeves was advised that if he failed to comply with this direction, his application would be dismissed.

[6] This matter was listed for a non compliance hearing before Commissioner Bissett on 15 May 2015. Mr Reeves did not attend the non compliance hearing.

[7] At the non compliance hearing, Commissioner Bissett reiterated that the Commission had forwarded correspondence to Mr Reeves on 14 May 2015 directing Mr Reeves to file documents by 21 May 2015.

[8] Mr Reeves 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] I am satisfied that DB Schenker’s objection filed on 14 May 2015 is an application to have the matter dismissed for Mr Reeves’ failure to comply with a direction of the Commission.

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

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

[13] After considering all the material, Mr Reeves’ application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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