William Birdsey v Crystal Pools Pty Ltd

[2016] FWC 9114

[2016] FWC 9114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

William Birdsey
v
Crystal Pools Pty Ltd
(U2016/10791)

COMMISSIONER JOHNS SYDNEY, 23 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 31 August 2016, William Birdsey (applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). Mr Birdsey alleged his employment had been terminated unfairly by Crystal Pools Pty Ltd (respondent) on 15 August 2016.

[2] The matter was the subject of conciliation, however, the matter was not resolved. The respondent raised an objection to the Commission hearing and determining the matter on the basis that the applicant earned more than the High Income Threshold (HIT).

[3] Consequently, directions were issued and the matter was listed for jurisdictional hearing.

[4] On 25 November 2016, the respondent filed a witness statement of Mr John Stanley Corish, explaining how it was said the applicant earned more than the HIT. The applicant was directed to advise the Commission whether he intended to pursue his unfair dismissal claim by 30 November 2016 (November Direction).

[5] The applicant did not comply with the November Direction.

[6] On 5 December 2016, formal Directions were issued directing the applicant to file in the Commission and serve on the respondent a response to the respondent’s correspondence dated 25 November 2016, and if he maintained that his earnings did not exceed the HIT, required him to explain in detail how he says that was the case by 9 December 2016 (December Direction).

[7] The applicant did not comply with the December Direction.

[8] On 12 December 2016, the respondent emailed the Commission and requested that the Commission exercise its discretion under s.399A(2) of the FW Act to dismiss the application on the basis of the applicant’s failure to comply with the directions and for want of prosecution.

[9] On 13 December 2016, further Directions were issued informing the applicant of the respondent’s s.399A application. The Directions noted the applicant’s failure to comply with the November Direction and December Direction. The applicant was directed to file submissions and other documentary material in opposition to the respondent’s application by 16 December 2016 (Second December Direction). The applicant was advised that if he failed to comply with this direction, his application would be dismissed.

[10] The applicant did not file any material in response to the Second December Direction.

[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] Because Mr Birdsey did not file any material in opposition to the application to dismiss his application for unfair dismissal remedy, I will determine the application on the papers.

[14] After considering all the material, Mr Birdsey’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR588775>