Trent Gunning v Australian Comfort Group Pty Ltd T/A Sleepmaker

[2013] FWC 6630

[2013] FWC 6630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trent Gunning
v
Australian Comfort Group Pty Ltd T/A Sleepmaker
(U2013/270)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 SEPTEMBER 2013

Application for remedy for unfair dismissal dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 1 February 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Trent Gunning. Mr Gunning’s employment had been terminated by Australian Comfort Group Pty Ltd T/A Sleepmaker (Sleepmaker) on 15 January 2013.

[2] The matter was listed for conciliation on 21 February 2013 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Gunning was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 22 April 2013.

[4] Mr Gunning failed to comply with this direction and the matter was listed for a non compliance hearing before Commissioner Jones on 17 May 2013.

[5] On 20 June 2013, Sleepmaker filed an objection to the application and sought the dismissal of the Mr Gunning’s application. Sleepmaker based their objection on grounds which include failing to attend the non compliance hearing.

[6] On 25 July 2013, Mr Gunning was sent correspondence informing him of the Respondent’s s.399A application. Mr Gunning was directed to file submissions and other documentary material in respect of Sleepmaker’s application by close of business, 9 August 2013. It was noted in the correspondence that if no response is received, Sleepmaker’s application will be dealt with on the papers.

[7] Mr Gunning did not file any material with the Commission.

[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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

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

[10] As Mr Gunning did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[11] After considering all the material, I have decided to dismiss Mr Gunning’s application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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