Timothy Love v Nujubi Pty Ltd T/A Reno Smash Repairs

[2014] FWC 3627

[2014] FWC 3627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Love
v
Nujubi Pty Ltd T/A Reno Smash Repairs
(U2014/5156)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JUNE 2014

Application for relief from unfair dismissal.

[1] On 27 February 2014, Mr Timothy Love made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Love’s employment had been terminated by Nujubi Pty Ltd T/A Reno Smash Repairs (Reno) on 10 February 2014.

[2] The matter was listed for conciliation on 8 April 2014 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Love was directed to file an outline of submission, any witness statements and other documentary material he wished to rely on by noon, on 26 May 2014.

[4] On 23 April 2014, the Respondent filed an objection to the application and sought the dismissal of Mr Love’s application. Reno based their objection on grounds which included the failure of Mr Love to attend the conciliation.

[5] On 2 May 2014, Mr Love was sent correspondence informing him of the Respondent’s s.399A application. Mr Love was directed to file submissions and other documentary material in respect of Reno’s application by close of business, on 9 May 2014. Mr Love was advised that if he failed to comply with this direction, his application would be dismissed.

[6] Numerous telephone messages have been left for Mr Love to contact the Fair Work Commission (the Commission). To date, Mr Love has not contacted the Commission.

[7] Mr Love was directed to file material in support of his claim by 26 May 2014. Mr Love was sent an email on 21 May 2014 asking if he intended complying with the directions. Mr Love did not respond to that email, nor did he file his material nor did he seek an extension of time to file the material. On 30 May 2014 Mr Love was advised that the application to dismiss his claim would be dealt with on the papers.

[8] 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.

[9] I am satisfied that Reno’s objection filed on 23 April 2014 is an application to have the matter dismissed for Mr Love’s failure to comply with a direction and failure to attend the conciliation. To the extent that Reno did not comply with rules when it made the application I waive compliance with the Rules.

[10] While I would not dismiss an application because an applicant had not participated in a conciliation conference in this case Mr Love has taken no steps to prosecute his claim and has not complied with directions of the Commission to file material in support of his claim, nor has he made any contact with the Commission to seek an extension of time to lodge his material.

[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 Love 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 Love’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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