MacRae v Royal George Hotel
Cited 1×
Applicant: Daniel MacRae
Respondent: Rembrook Pty Ltd T/A Royal George Hotel
Ratio
The FWC dismissed the unfair dismissal application under s.399A after the applicant unreasonably failed to comply with directions to file submissions and materials, failed to attend a non-compliance hearing, and provided no explanation for his non-compliance. The discretionary power to dismiss was exercised because the applicant showed no willingness to prosecute his case and made no response to multiple commission contacts.
Outcome
Against applicant
dismissed_jurisdiction
Authority signal
Cited 1×
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Key facts · 13
- Applicant's employment was terminated on 21 December 2015
- Application for unfair dismissal made on 7 January 2016
- Conciliation held on 25 February 2016; matter not resolved
- Applicant directed to file outline of submissions, witness statements and documentary material by noon on 21 March 2016
- Applicant failed to comply with the direction
- Non-compliance hearing scheduled before Deputy President Kovacic on 1 April 2016
- Applicant did not attend the non-compliance hearing
- Respondent made oral application under s.399A to dismiss the application
- Deputy President Kovacic waived compliance with FWC Rules 2013 and accepted the oral application
- Applicant sent correspondence on 1 April 2016 informing him of s.399A application
- Applicant directed to file submissions by close of business 8 April 2016
- Applicant warned that failure to comply would result in dismissal of application
- Applicant did not file any material in response
Factors
For
- Applicant failed to comply with directions to file submissions and materials
- Applicant did not attend non-compliance hearing
- Applicant provided no explanation for non-compliance
- Applicant failed to respond to multiple attempts by Commission to contact him
- Applicant showed no willingness to prosecute his case
Against
Legislation referenced
- Fair Work Act 2009 s.394
- Fair Work Act 2009 s.399A
- Fair Work Act 2009 s.593
- Fair Work Commission Rules 2013
Concept tags · 5
Principles · 1
articulates para 12
The power to dismiss an application under s.399A if non-compliance was unreasonable is discretionary, and the FWC may exercise that discretion where the applicant has failed to respond to multiple attempts by the Commission to contact him and shown no willingness to prosecute his case.
Archived text (574 words)
MacRae v Royal George Hotel [2016] FWC 2403 (15 April 2016)
[2016] FWC 2403
FAIR WORK COMMISSION
DECISION
Fair Work Act 2009
s.394
—Unfair dismissal
Daniel MacRae
v
Rembrook Pty Ltd T/A Royal George Hotel
(U2016/3634)
DEPUTY PRESIDENT GOOLEY
MELBOURNE, 15 APRIL 2016
Application for relief from unfair dismissal.
[1]
On 7 January 2016, Mr Daniel MacRae made an application for remedy for unfair dismissal under
section 394
of the
Fair Work Act 2009
(the Act). Mr MacRae’s employment had been terminated by Rembrook Pty Ltd T/A Royal George Hotel on 21 December 2015.
[2]
The matter was the subject of conciliation on 25 February 2016 however, the matter was not resolved. Consequently, directions were
issued and the matter was listed for hearing.
[3]
Mr MacRae was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely
on by noon, on 21 March 2016.
[4]
Mr MacRae did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Kovacic
on 1 April 2016.
[5]
Mr MacRae did not attend the non compliance hearing. Rembrook made an oral application, pursuant to
s.399A
of the Act, that the matter be dismissed as Mr MacRae had failed to comply with the direction of the Fair Work Commission. Deputy
President Kovacic waived compliance with the
Fair Work Commission Rules 2013
and accepted Rembrook’s oral application.
[6]
On 1 April 2016, Mr MacRae was sent correspondence informing him of Rembrook’s section 399A application. Mr MacRae was directed
to file submissions and other documentary material in respect of Rembrook’s application by close of business, on 8 April 2016.
Mr MacRae was advised that if he failed to comply with this direction, his application would be dismissed.
[7]
Mr MacRae did not file any material with the Commission.
[8]
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.
[9]
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
[10]
As Mr MacRae did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
[11]
As Mr MacRae has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.
[12]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr MacRae has failed to respond to the
many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will
exercise my discretion and dismiss Mr MacRae’s application. An order giving effect to this decision will be issued today.
DEPUTY PRESIDENT
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