Thomas Jones v Aurizon Operations Ltd T/A Aurizon

[2017] FWC 3390

[2017] FWC 3390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Jones
v
Aurizon Operations Ltd T/A Aurizon
(U2017/3101)

COMMISSIONER SAUNDERS NEWCASTLE, 28 JUNE 2017

Application for an unfair dismissal remedy – s.399A application made by employer – application dismissed.

[1] This decision relates to an unfair dismissal application by Mr Thomas Jones (the applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) against his former employer, Aurizon Operations Ltd T/A Aurizon (the respondent).

History of proceedings

[2] The matter was listed for directions by telephone on 19 May 2017. The applicant participated in that directions hearing. On 25 May 2017 the Commission made directions for the parties to file and serve outlines of submissions, witness statements, and other documentary material. The directions also gave notice to the parties that the matter was listed for hearing in Newcastle on 20 and 21 July 2017.

[3] Mr Jones was directed to file and serve his material by no later than 4.00pm on 15 June 2017. On 14 June 2017, Mr Jones’ representative contacted the Commission to notify the Commission she had been unable to contact the applicant and was therefore ceasing to act for the applicant in this matter. The applicant failed to submit his material by 4.00pm on 15 June 2017 and therefore failed to comply with the directions of the Commission.

[4] On 19 June 2017 my Associate sent an email to the applicant informing him that his material was overdue and requesting that file and serve his material.

[5] On 21 June 2017 my Associate attempted to telephone the applicant on the phone number he had provided to the Commission but his phone had been disconnected.

[6] On 22 June 2017 my Associate sent correspondence to the applicant’s email and also (by Express Post) to the mailing address he had provided to the Commission. The correspondence directed the applicant to file and serve material he intended to rely on before 4.00pm on 27 June 2017 and informed him that if he did not do so his application would be dismissed without further notice to him. The applicant has not filed any material, nor has he made any contact with the Commission since the initial directions were made.

Application for dismissal

[7] Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

[8] On 22 June 2017 the respondent made an application under s.399A(1)(b) and (2) of the Act to dismiss the applicant’s application.

[9] In light of the history of the proceedings outlined above and the failure of Mr Jones to comply with the directions issued on 25 May 2017 and 22 June 2017, I am satisfied that Mr Jones has unreasonably failed to comply with directions made by the Commission relating to his unfair dismissal application. I am also satisfied that there has been an application by the employer in accordance with s.399A(2).

[10] I therefore exercise my discretion pursuant to s.399A(1)(b) or, in the alternative, s.587(1) of the Act to dismiss the applicant’s unfair dismissal application. The hearing dates of 20 and 21 July 2017 are vacated.

COMMISSIONER

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