Anthony Axarlis v Marco's IGA T/A Narre Warren Nth Shopping Centre Pty Ltd

[2015] FWC 702

[2015] FWC 702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Axarlis
v
Marco’s IGA T/A Narre Warren Nth Shopping Centre Pty Ltd
(U2014/14595)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 JANUARY 2015

Application for relief from unfair dismissal.

[1] On 24 October 2014 Mr Anthony Axarlis made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Axarlis’ employment had been terminated by Marco’s IGA T/A Narre Warren North Shopping Centre Pty Ltd (Marco’s IGA) on 20 September 2014. Mr Axarlis’s application was therefore not made within the 21 days provided for in the Act.

[1] Directions were issued and the matter was listed for hearing of Mr Axarlis’s application for an extension of time.

[1] Mr Axarlis was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 28 November 2014.

[2] On 3 December 2014 Marco’s IGA applied to have Mr Axarlis’s application dismissed on the grounds Mr Axarlis failed to comply with directions. This application was not in the proper form.

[1] On 10 December 2014, Mr Axarlis was sent correspondence informing him of Marco’s IGA’s section 399A application. Mr Axarlis was directed to file submissions and other documentary material in respect of Marco’s IGA’s application by close of business, on 17 December 2014. Mr Axarlis was advised that if he failed to comply with this direction, his application would be dismissed.

[1] Mr Axarlis did not file any material with the Commission.

[2] 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.

[3] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[4] As Mr Axarlis did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[5] After considering all the material, Mr Axarlis application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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