Alejandro Guillen Estudillo v Electroboard Solutions Pty Ltd

[2013] FWC 1602

[2013] FWC 1602

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alejandro Guillen Estudillo
v
Electroboard Solutions Pty Ltd
(U2012/14878)

COMMISSIONER GOOLEY MELBOURNE, 14 MARCH 2013

Application for unfair dismissal remedy.

[1] Mr Alejandro Estudillo (the Applicant) was dismissed from his employment with Electroboard Solutions Pty Ltd (the Respondent) on 19 October 2012. On 6 November 2012 the Applicant lodged an unfair dismissal claim. This was 18 days after his employment ended.

[2] The Application was referred to conciliation on 27 November 2012 but the claim was not settled.

[3] The Applicant was a holder of a 457 visa and as a result of the termination of his employment he returned to the United Kingdom.

[4] The Fair Work Commission (the Commission) made a number of attempts to contact the Applicant in early February 2013. On 7 February 2013 the Applicant advised the Commission that he wished his application to be dealt with by video conference.

[5] On 8 February 2013 my chambers advised the Applicant that as his application was not made within 14 days of the date of his dismissal it was necessary for the Commission to determine if he should be granted an extension of time. The Applicant was directed to file and serve by the close of business on 20 February 2013 any submissions and evidence in support of his application to extend time. He was advised that the application for an extension of time would be heard at the hearing of the substantive application.

[6] The Applicant did not respond to this email and on 22 February 2013 he was advised by email that due to his failure to respond to the earlier email his application would be listed for a telephone mention on 4 March 2013. The Applicant was asked to provide a telephone number on which he could be contacted. There was no response to this email and a further email was forwarded to the Applicant on 28 February 2012 asking for a telephone number on which he could be contacted. There was no response to this email.

[7] The telephone mention set down for 4 March 2013 was cancelled and on the same day the Applicant was notified by email that it was rescheduled to 7 March 2013. Again the Applicant was asked to provide a telephone number on which he could be contacted.

[8] On 5 March 2013 the Applicant was further advised by email that his application was out of time and that he had not complied with the directions of 8 February 2013. He was advised that unless he advised the Commission by close of business on 6 March 2013 that he intended participating in the telephone conference listed for 6pm on 7 March 2013 and provided a telephone contact number his application for an unfair dismissal remedy would be dismissed.

[9] The Applicant did not respond to this email.

[10] Section 394(2) of the Fair Work Act 2009 (the FW Act) provided, at the time the Applicant was dismissed, that an application must be made within 14 days after the dismissal took effect or within such further period as Fair Work Australia allows.

[11] The Applicant has taken no steps to prosecute his application for an extension of time since 7 February 2013. Despite repeated attempts to contact the Applicant to allow him to tell the Commission why he had failed to comply and if he wished to continue with his application the Applicant has failed to respond.

[12] Section 587 of the FW Act provides that the Fair Work Commission may dismiss application as follows:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[13] In these circumstances the application has not been made in accordance with the FW Act as it was not made within 14 days and no extension of time has been granted. Therefore the application is dismissed.

COMMISSIONER

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