Tyler Warrington v Webster Pumps and Props

[2015] FWC 8839

[2015] FWC 8839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tyler Warrington
v
Webster Pumps and Props
(U2015/13190)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 28 September 2015, Mr Tyler Warrington made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Warrington’s employment had been terminated by Webster Pumps and Props on 9 September 2015.

[2] The matter was listed for conciliation on 29 October 2015, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Warrington was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 30 November 2015.

[4] On 25 November 2015, a Fair Work Commission staff member spoke with Mr Warrington and confirmed the details in the Notice of Listing, which contained the directions to file material.

[5] Mr Warrington did not comply with this direction.

[6] On 1 December 2015, a voice message, which converted to text, was left for Mr Warrington, asking that he telephone the Commission.

[7] On 1 December 2015, Webster Pumps and Props filed an objection to the application and sought the dismissal of Mr Warrington’s application. Webster Pumps and Props based their objection on grounds which include failure to comply with directions.

[8] On 2 December 2015, Mr Warrington was sent correspondence informing him of Webster Pumps and Props’ section 399A application. Mr Warrington was directed to file submissions and other documentary material in respect of Webster Pumps and Props’ application by close of business, on 14 December 2015. Mr Warrington was advised that if he failed to comply with this direction, his application would be dismissed.

[9] On 11 December 2015, a Commission staff member spoke to Mr Warrington and confirmed he was required to file material by 5.00pm on 14 December 2015 as to why the Commission should not dismiss his application. Mr Warrington was informed that not complying with the directions is serious as his application could be dismissed. Mr Warrington said that the reason he had not complied with the directions was that he had been busy with work.

[10] Mr Warrington did not file any material with the Commission.

[11] 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.

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

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

[14] I find that Mr Warrington’s failure to comply with the direction was unreasonable and given he has failed to respond to communication from the Commission, I will exercise my discretion and dismiss his application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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