Aron Fisher v Turbovac

[2015] FWC 3739

[2015] FWC 3739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aron Fisher
v
Turbovac
(U2015/4035)

COMMISSIONER RYAN MELBOURNE, 2 JUNE 2015

Application for relief from unfair dismissal.

[1] On 17 March 2015, Mr Aron Fisher, made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Fisher’s employment had been terminated by Turbovac (Respondent) on 17 November 2014. The Applicant's application was lodged more than 21 days after the dismissal took effect.

[2] Consequently, directions were issued and the matter was listed for a jurisdictional hearing on 26 May 2015.

[3] The Applicant was directed to lodge with the Fair Work Commission and serve on the Respondent materials in support of an extension of time for the lodgement of his application by noon on 27 April 2015.

[4] The Applicant did not comply with this direction. Several attempts were made to contact the Applicant which were unsuccessful.

[5] The Respondent filed an application pursuant to s.399A on 12 May 2015.

[6] On 13 May 2015, The Applicant was sent correspondence informing him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application. The Applicant was advised that if he failed to comply with this direction, his application would be dismissed.

[7] The Applicant did not file any material with the Commission by the due date.

[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 the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] After considering all the material, Mr Fisher’s application for remedy from unfair dismissal is dismissed pursuant to s.399Aof the Act. An order giving effect to this decision will be issued today.

COMMISSIONER

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