William Hunuki v Staff Australia Pty Ltd

[2017] FWC 1033

[2017] FWC 1033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Hunuki
v
Staff Australia Pty Ltd
(U2016/11453)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] On 15 September 2016, Mr William Hunuki made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Following correspondence with the Fair Work Commission, on 8 December 2016 Mr Hunuki filed a Form F1 which sought to amend the Respondent in the application to Staff Australia Pty Ltd. On 12 December 2016, Staff Australia advised the Commission it consented to the amendment and the following day, an Order was issued amending the Respondent’s details accordingly.

[3] The matter was listed for conciliation on 13 January 2017, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[4] Mr Hunuki was directed to file an outline of argument, any witness statements and other documentary material he wished to rely on by noon, on Monday 6 February 2017.

[5] The Commission attempted to telephone Mr Hunuki regarding his outstanding material and voicemails were left on 7 February and 8 February 2017 seeking a return call. An email was also sent to Mr Hunuki on 7 February 2017 asking that he contact the Commission regarding his submissions.

[6] As Mr Hunuki did not comply with the directions, the matter was listed for a non compliance hearing before Deputy President Gooley on 10 February 2017.

[7] Mr Hunuki did not attend the non compliance hearing. Staff Australia made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Hunuki had failed to comply with the direction of the Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted Staff Australia’s oral application.

[8] On 10 February 2017, Mr Hunuki was sent correspondence informing him of Staff Australia’s section 399A application. Mr Hunuki was directed to file submissions and other documentary material in respect of Staff Australia’s application by close of business, on Monday 20 February 2017. Mr Hunuki was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr Hunuki did not file any material with the Commission.

[10] 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.

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

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Hunuki has failed to respond to the attempts by the Commission to contact him. He has shown no willingness to prosecute his case and he has provided no explanation for his failure to comply with directions. In these circumstances, I will exercise my discretion under s.399A(1)(b) of the Act and dismiss Mr Hunuki’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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