Tyren Morris v Broome TV Pty Ltd T/A Broome Tv

[2021] FWC 4082

[2021] FWC 4082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tyren Morris
v
Broome TV Pty Ltd T/A Broome Tv
(U2021/3326)

DEPUTY PRESIDENT BINET PERTH, 13 JULY 2021

Application for an unfair dismissal remedy - Application by the Respondent pursuant to s 399A of the Fair Work Act – Application dismissed.

[1] On 19 April 2021, Mr Tyren Morris (Mr Morris) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Broome TV Pty Ltd T/A Broome TV (Broome TV).

[2] On 31 May 2021, Broome TV filed a Form F3 - Employer response to unfair dismissal application raising the jurisdictional objection that Mr Morris resigned and was not dismissed (Jurisdictional Objection).

[3] The Application was allocated to my Chambers for determination.

[4] Directions were issued to parties on 14 June 2021 which required Mr Morris to file his materials in relation to the merit of the Application by 24 June 2021 and his materials in response to the Jurisdictional Objection by 1 July 2021 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[5] Mr Morris failed to file any materials in accordance with the Directions.

[6] On 28 June 2021, Chambers wrote to Mr Morris and reminded him that his materials in relation to the merits of his application were overdue.

[7] On 6 July 2021 Broome TV Pty Ltd made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Morris failed to comply with the Directions (Dismissal Application).

[8] Mr Morris was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on Thursday 8 July 2021. Chambers advised Mr Morris that if he did not file submissions and evidence by 4pm Thursday 8 July 2021the Application would be dismissed pursuant to section 399A of the FW Act.

[9] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Morris by 4pm Thursday 8 July 2021, or since.

[10] Section 399A of the FW Act provides:

“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 other 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).

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.”

[11] Mr Morris failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr Morris has still not filed any materials in support of his Application or in response to the Dismissal Application. I am satisfied that Mr Morris has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Broome TV and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

[12] An Order to this effect will be issued with this decision. 1

DEPUTY PRESIDENT

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