Trevor Lewtas v Glenduart Industries Pty Ltd T/A Morrows Freightlines

[2015] FWC 8520

[2015] FWC 8520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Lewtas
v
Glenduart Industries Pty Ltd T/A Morrows Freightlines
(U2015/7261)

COMMISSIONER CRIBB MELBOURNE, 9 DECEMBER 2015

Application for relief from unfair dismissal - application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] An application, under section 394 of the Fair Work Act 2009 (the Act), was made by Mr Trevor Lewtas (the Applicant) on 30 April 2015. Mr Lewtas’ employment ended with Glenduart Industries Pty Ltd T/A Morrows Freightlines (the Respondent, Morrows Freightlines) on 24 April 2015.

[2] A jurisdictional objection was raised by the Respondent on 15 May 2015. This was that the dismissal was a genuine redundancy. The jurisdictional objection, together with whether the dismissal was unfair, was set down for an arbitration hearing on 10 November 2015. The date set for the hearing was based on Mr Lewtas’ availability. A Notice of Listing was emailed to Mr Lewtas on 10 September 2015 advising him of the hearing date.

[3] On the day of the scheduled hearing, Mr Lewtas did not attend. Two voice messages were left on Mr Lewtas’ mobile asking for Mr Lewtas to call in relation to the hearing. No response has been received. When Mr Lewtas did not attend the hearing, the Respondent made a verbal application, under section 399A of the Act, to have the application dismissed due to the Mr Lewtas’ failure to attend the hearing.

[4] On 10 November 2015, correspondence was sent to Mr Lewtas by the Commission, directing him to file and serve submissions providing the reasons why he did not attend the hearing. This material was to be provided by no later than close of business on Tuesday 24 November 2015. The letter also advised Mr Lewtas that failure to comply with this direction would result in his application being dismissed.

[5] Mr Lewtas did not file any material with the Commission by the due date.

[6] 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.

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

[8] As Mr Lewtas did not file any material in opposition to the application to dismiss by the Respondent and failed to attend the hearing on 10 November 2015, I have decided to determine the application on the papers.

[9] After considering all of the material, pursuant to section 399A(1)(a) of the Act, I have decided to dismiss Mr Lewtas’ application for an unfair dismissal remedy.

[10] An order 1 giving effect to this decision will be issued today.

 1   PR574893

Printed by authority of the Commonwealth Government Printer

<Price code A, PR574892>