Kidd v CHEP Australia
Cited 1×
Applicant: Robert Kidd
Respondent: CHEP Australia T/A CHEP
Ratio
The FWC dismissed the unfair dismissal application under s.399A because the applicant unreasonably failed to comply with a direction to file submissions and documentary material by the specified deadline, and the applicant provided no explanation for the non-compliance.
Outcome
Against applicant
dismissed
Authority signal
Cited 1×
Signal-weighted score: 0.0
Derived from how later decisions have treated this case. Dark green = leading authority,
green = positively treated, grey = neutral or sparse data,
amber = caution, red = treated negatively.
Key facts · 8
- Applicant's employment terminated on 21 September 2015
- Application for unfair dismissal lodged on 30 September 2015
- Conciliation scheduled for 2 November 2015 but could not take place
- Applicant directed to file outline of submissions, witness statements and documentary material by noon on 30 November 2015
- Respondent filed s.399A objection on 16 December 2015
- Applicant directed to file submissions on the s.399A application by close of business on 28 December 2015
- Applicant failed to file any material by either deadline
- Applicant made no contact with the Commission since application was lodged
Factors
For
Against
- Applicant failed to comply with initial direction to file submissions and documentary material by 30 November 2015
- Applicant provided no explanation for non-compliance
- Applicant failed to comply with second direction to file submissions on the dismissal application by 28 December 2015
- Applicant made no contact with the Commission since lodging the application
Legislation referenced
- Fair Work Act 2009 (Cth) s.394
- Fair Work Act 2009 (Cth) s.399A
- Fair Work Act 2009 (Cth) s.593
Concept tags · 3
Principles · 2
articulates para 7
The FWC may dismiss an unfair dismissal application under s.399A(1) if satisfied that the applicant has unreasonably failed to comply with a direction of the FWC relating to the application.
articulates para 10
Non-compliance with a direction to file material by a specified deadline, without explanation, constitutes unreasonable non-compliance.
Archived text (497 words)
Kidd v CHEP Australia [2016] FWC 158 (8 January 2016)
[2016] FWC 158
FAIR WORK COMMISSION
DECISION
Fair Work Act 2009
s.394
—Unfair dismissal
Robert Kidd
v
CHEP Australia T/A CHEP
(U2015/13281)
DEPUTY PRESIDENT GOOLEY
MELBOURNE, 8 JANUARY 2016
Application for relief from unfair dismissal.
[1]
On 30 September 2015, Mr Robert Kidd made an application for remedy for unfair dismissal under
section 394
of the
Fair Work Act 2009
(the Act). Mr Kidd’s employment had been terminated by CHEP Australia Ltd T/A CHEP on 21 September 2015.
[2]
The matter was listed for conciliation on 2 November 2015 however it could not take place). Consequently, directions were issued and
the matter was listed for hearing.
[3]
Mr Kidd was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on
by noon, on 30 November 2015.
[4]
On 16 December 2015, CHEP filed an objection to the application, pursuant to
section 399A
of the Act, that the matter be dismissed as Mr Kidd had failed to comply with the direction of the Fair Work Commission.
[5]
On 16 December 2015, Mr Kidd was sent correspondence informing him of CHEP’s section 399A application. Mr Kidd was directed
to file submissions and other documentary material in respect of CHEP’s application by close of business, on 28 December 2015.
Mr Kidd was advised that if he failed to comply with this direction, his application would be dismissed.
[6]
Mr Kidd did not file any material with the Commission.
[7]
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.
[8]
Section 593
of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
[9]
As Mr Kidd did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
[10]
Given Mr Kidd has provided no explanation for his failure to comply with the directions, I find his non compliance to be unreasonable.
[11]
Further, as Mr Kidd has made no contact with the Commission since his application was lodged, I will exercise my discretion to dismiss
the application. An order giving effect to this decision will be issued today.
DEPUTY PRESIDENT
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