McCormick v Ingram Micro Pty Ltd [2016] FWC 514 (27 January 2016) [2016] FWC 514 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Lachlan McCormick v Ingram Micro Pty Ltd T/A Ingram Micro (U2015/11617) DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JANUARY 2016 Application for relief from unfair dismissal. [1] On 4 September 2015, Mr Lachlan McCormick made an application, by telephone to the Fair Work Commission, for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr McCormick’s employment had been terminated by Ingram Micro Pty Ltd T/A Ingram Micro on 14 August 2015. [2] On 18 September 2015, the Commission received Mr McCormick’s completed application form. [3] The matter was listed for conciliation on 22 September 2015 which was later relisted for 9 November 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing. [4] Mr McCormick was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 December 2015. [5] On 14 December 2015, Commission staff attempted to contact Mr McCormick, by telephone, regarding the filing of his materials but were unable to leave a voice message. [6] On 15 December 2015, Mr McCormick contacted the Commission regarding his inability to file materials in support of his application due to his health. Commission staff informed Mr McCormick that as he had not complied with the Commission’s direction, the matter would be listed for a non compliance hearing before Commissioner Roe on 18 December 2015 and that he would have an opportunity to provide an explanation at that hearing. [7] On 15 December 2015, Ingram Micro forwarded an email to the Commission requesting that Mr McCormick’s application be dismissed for failure to comply with the Commission’s direction. A copy of this email was forwarded to Mr McCormick. [8] On 16 December 2015, Ingram Micro contacted the Commission regarding their request for the application to be dismissed. Commission staff informed Ingram Micro that the matter was listed for a non compliance hearing and that Commissioner Roe could hear an application to dismiss the matter at that time. [9] Commission staff contacted Mr McCormick on 16 December 2015 and advised him of Ingram Micro’s request to dismiss his application and that Ingram Micro may raise that request with Commissioner Roe at the non compliance hearing. [10] At the non compliance hearing, Commissioner Roe granted Mr McCormick a further period of time to file his materials until 24 December 2015. [11] On 24 December 2015, Commission staff spoke with Mr McCormick who advised that he had been unable to prepare and file his submissions due to his health. Commission staff informed Mr McCormick that if he wanted to obtain a further extension of time he would need to make that request in writing. [12] No request for an extension of time was received from Mr McCormick. [13] On 6 January 2016, Ingram Micro filed an objection to the application and sought the dismissal of Mr McCormick’s application. Ingram Micro based their objection on grounds which include failure to comply with directions. [14] On 11 January 2016, Mr McCormick was sent correspondence informing him of Ingram Micro’s section 399A application. Mr McCormick was directed to file submissions and other documentary material in respect of Ingram Micro’s application by close of business, on 21 January 2016. Mr McCormick was advised that if he failed to comply with this direction, his application would be dismissed. [15] Mr McCormick did not file any material with the Commission. [16] 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. [17] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. [18] As Mr McCormick did not file any material in opposition to the application to dismiss, I will determine the application on the papers. [19] While Mr McCormick has advised that his ill health had prevented him from complying with the directions, he has not filed any medical evidence to support his claim that his medical condition has prevented him from complying with the directions or from seeking an extension of time to file his material, I find that his continued failure was unreasonable. [20] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr McCormick has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr McCormick’s application. An order giving effect to this decision will be issued today. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR576445>