Arturo Zuniga v Interaction Disability Services Ltd

[2016] FWC 2250

[2016] FWC 2250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Arturo Zuniga
v
Interaction Disability Services Ltd
(U2015/16529)

COMMISSIONER RYAN MELBOURNE, 8 APRIL 2016

Application for relief from unfair dismissal – s.399A application.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 4 December 2015. The application was made by Arturo Zuniga(the Applicant) and the employer is Interaction Disability Services Ltd(the Respondent).

[2] On 10 February 2016 this matter was listed for arbitration on 5 and 6 April 2016 and Directions for the filing and service of material were issued. The Applicant failed to comply with those Directions. Amended Directions were issued on 1 March 2016, which the Applicant also failed to comply with.

[3] On 8 March the Respondent’s representative, Mr Richad Pegg, filed an application pursuant to s.399A of the Act.

[4] On 24 March 2016 the arbitration dates of 5 and 6 April 2016 were vacated due to the non-compliance by the Applicant with Directions.

[5] The s.399A application and the Applicant’s response to that application were the subject of proceedings before me today by telephone, in which Ms J. Creswell appeared for the Applicant and Mr R. Pegg appeared for the Respondent.

[6] 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.”

[7] I am satisfied that the Applicant has failed to comply with the Directions of the Commission which means that the provisions of subsections (1) (a) and (b) of s.399A of the Act have been met.

[8] In considering this matter, I note that the Applicant did file and serve material on 1 April 2016 and that the Respondent had requested that the matter not proceed before 17 May 2016 due to the absence overseas of Mr Haddad, one of its key witnesses. Further, on questioning by me, Mr Pegg advised that the Respondent would require until the end of May 2016 to file its material in response.

[9] Therefore, I consider that the Applicant’s conduct has not disadvantaged the Respondent as the Respondent was not in a position to proceed in any event.

[10] The application to dismiss the application of Mr Zuniga pursuant to s.399A of the Act is refused.

[11] Further programming of this matter will now occur.

COMMISSIONER

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