Stuart Maxwell v Nando's Australia Pty Ltd T/A Nando's Underwood

[2016] FWC 8516

[2016] FWC 8516

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Maxwell
v
Nando’s Australia Pty Ltd T/A Nando’s Underwood
(U2016/8829)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 11 August 2016, Mr Stuart Maxwell made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Maxwell’s employment had been terminated by Nando’s Australia Pty Ltd (Nando’s) on 29 July 2016.

[2] After adjournments at the request of each party, the matter was listed for conciliation on 14 October 2016, however, it could not take place as Mr Maxwell did not attend. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Maxwell was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 November 2016.

[4] In the afternoon of 14 November 2016, a Commission staff member spoke with Mr Maxwell who advised he did not realise his submissions were due at noon that day and that he would need an extension of time. Mr Maxwell was advised to put that request in writing, which he said he would do.

[5] As Mr Maxwell had made no contact with the Commission, on 16 November 2016, a telephone message was left for him. An email was also sent to him asking that he contact the Commission regarding his submissions by close of business that day.

[6] Also on 16 November 2016, Nando’s filed an objection to the application and sought the dismissal of Mr Maxwell’s application under section 399A of the Act. Nando’s based their objection on grounds which include failure to comply with directions.

[7] Mr Maxwell emailed the Commission on 16 November 2016, saying “can the hearing just be called off?’ An email was sent in reply asking that he contact the Commission to discuss the matter.

[8] On 17 November 2016, Mr Maxwell was sent correspondence informing him of Nando’s section 399A application. Mr Maxwell was directed to file submissions and other documentary material in respect of Nando’s application by close of business, on 24 November 2016. Mr Maxwell was advised that if he failed to comply with this direction, his application would be dismissed.

[9] On 28 November 2016, a final attempt was made to contact Mr Maxwell via telephone, which was unsuccessful.

[10] To date, Mr Maxwell has not filed any material with the Commission.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. As Mr Maxwell has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable. Mr Maxwell has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Maxwell’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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