Zachery Pierce v P.H & S Contracting

[2020] FWC 3048

[2020] FWC 3048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zachery Pierce
v
P.H & S Contracting
(U2020/519)

DEPUTY PRESIDENT BINET PERTH, 11 JUNE 2020

Application for an unfair dismissal remedy – failure to comply with Directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 15 January 2020, Mr Zachery Pierce (Mr Pierce) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by P.H & S Contracting.

[2] The matter was listed for conciliation on 25 February 2020. The Commission Staff Conciliator was unable to contact Mr Pierce and the conciliation could not proceed.

[3] Mr Pierce’s application was then allocated to my Chambers for determination.

[4] Chambers endeavoured to contact Mr Pierce by email on 10 March 2020 and 19 March 2020 to arrange a conference, but Mr Pierce did not respond to that correspondence.

[5] On 31 March 2020, the parties were issued with directions which required Mr Pierce to file and serve on P.H & S Contracting by 4pm on 10 April 2020 submissions and evidence in relation to the merits of his application (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[6] Mr Pierce failed to file any materials in accordance with the Directions.

[7] On 22 April 2020, P.H & S Contracting filed with Chambers and served on Mr Pierce an application for the matter to be dismissed pursuant to section 399A of the FW Act. P.H & S Contracting submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Pierce unreasonably failed to comply with a direction of the Commission when he failed to file his materials in accordance with the Directions (Dismissal Application).

[8] On 29 April 2020, Mr Pierce was invited to file submissions and evidence or other documentary material supporting those reasons as to why the Application should not be dismissed by 4pm on 6 May 2020.

[9] 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).

(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] Mr Pierce failed to file the materials he was directed to file by the dates specified in the Directions or at all. Mr Pierce failed to seek an extension to file his materials or provide a reason for failing to do so. As at the date of this decision Mr Pierce has still not filed any materials in support of his Application or in opposition to the Dismissal Application. I am satisfied that Mr Pierce has unreasonably failed to comply with directions of the Commission relating to this Application.

[11] On application of P.H & S Contracting and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR720094] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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