Troy Albiston v Hafwans T/A Health & Fitness World Glenorchy

[2016] FWC 89

[2016] FWC 89

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Albiston
v
HAFWANS T/A Health & Fitness World Glenorchy
(U2015/12027)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 28 September 2015, Mr Troy Albiston made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] The matter was the subject of conciliation on 29 October 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Albiston was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 7 December 2015.

[4] Mr Albiston requested an extension to file his submissions. A further period of time was granted and Mr Albiston was required to file his material by 14 December 2015.

[5] Mr Albiston did not comply with the directions. On 14 December 2015, Mr Albiston sent an email to the Commission advising that he was having difficulty getting witnesses to give evidence because they were still employed. He asked if he withdrew his application could he take action at a later date. He did not, request a further extension of time and has subsequently made no contact with the Commission or HAFWANS.

[6] On 15 December 2015, HAFWANS filed an objection to the application and sought the dismissal of Mr Albiston’s application under s.399A of the Act. HAFWANS based their objection on grounds which included Mr Albiston’s failure to comply with directions.

[7] On 16 December 2015, Mr Albiston was sent correspondence informing him of HAFWANS’ section 399A application. Mr Albiston was directed to file submissions and other documentary material in respect of HAFWANS’ application by close of business, on 29 December 2015. Mr Albiston was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Albiston did not file any material with the Commission.

[9] 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.

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

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

[12] As Mr Albiston has provided no explanation for his failure to comply with the directions issued. I find that his failure to comply was unreasonable. The power to dismiss an application is discretionary. Mr Albiston was aware of his obligations and understood the process to request an adjournment. Instead Mr Albiston has chosen to not respond to communication from the Commission. Even if Mr Albiston was having difficulty getting others to give a witness statement he could have filed his own witness statement along with his submissions. He could have asked the Commission to order his witness attend.

[13] I will therefore exercise my discretion and dismiss his application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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