Tyrone Taiepa v Shinsen Taijutsu Pty. Ltd T/A Mma247

[2017] FWC 6381

[2017] FWC 6381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tyrone Taiepa
v
Shinsen Taijutsu Pty. Ltd T/A MMA247
(U2017/9842)

COMMISSIONER BISSETT MELBOURNE, 1 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 11 September 2017, Mr Tyrone Taiepa made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Taiepa said he was notified of his dismissal on 22 August 2017, with it taking effect the same day.

[2] The matter was initially listed for conciliation on 5 October 2017, however Mr Taiepa could not be contacted. Mr Taiepa sent an email to the Fair Work Commission later that day, advising his phone had overheated and went into update mode. Mr Taiepa requested a further conciliation take place on two particular dates. On 13 October 2017, the Commission left a voicemail message, advising the times suggested by Mr Taiepa were not suitable and a return call was sought. Mr Taiepa did not respond to the Commission’s call.

[3] On 23 October 2017, parties were sent a Notice of Listing which advised the Conference/Hearing dates and also the Requirements to file material. Mr Taiepa was required to file an Outline of Argument, Outline of Argument: Objections, Statement of Evidence and Document List by no later than noon on 13 November 2017.

[4] On Friday 10 November 2017, an SMS message was sent to Mr Taiepa, reminding him that his written submissions were due to be filed on the coming Monday.

[5] As no material had been filed, in the afternoon of 13 November 2017, the Commission sent Mr Taiepa an email advising if he wished to proceed with his application, he would need to file a request for an extension to file his submissions or to otherwise file his material. Mr Taiepa was advised that in the absence of any response, his matter would be listed for a non-compliance hearing on 17 November 2017.

[6] On 15 November 2017, two voicemails were left for Mr Taiepa which sought urgent return calls.

[7] The non-compliance hearing proceeded before me on 17 November 2017. Mr Taiepa did not attend the hearing. Shinsen Taijutsu Pty. Ltd made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Taiepa had failed to comply with a direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Shinsen Taijutsu Pty. Ltd’s oral application. Correspondence was then sent to Mr Taiepa, informing him of Shinsen Taijutsu Pty. Ltd’s s.399A application. Mr Taiepa was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 24 November 2017. This correspondence was sent to Mr Taiepa via email and post.

[8] To date, Mr Taiepa has not filed 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 Taiepa did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Taiepa has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application and requesting a further conciliation, Mr Taiepa has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Taiepa’s application.

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

COMMISSIONER

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