Fernando Sanchez v Apromo Trading Pty Ltd

[2014] FWC 6825

[2014] FWC 6825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fernando Sanchez
v
Apromo Trading Pty Ltd
(U2014/4934)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 24 February 2014, Mr Fernando Sanchez made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Sanchez’s employment had been terminated by Apromo Trading Pty Ltd (Apromo) on 20 February 2014.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Sanchez was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 16 June 2014.

[4] Mr Sanchez was represented and through his representative requested an extension to file his submissions as he was travelling overseas until September 2014. A further period of time was granted and Mr Sanchez was required to file his material by 3 September 2014.

[5] On 4 August 2014 Mr Sanchez representative advised that it no longer acted for him.

[6] Mr Sanchez did not comply with this direction and the matter was listed for a non compliance hearing before me on 12 September 2014.

[7] On 10 September 2014, Apromo filed an objection to the application and sought the dismissal of Mr Sanchez’s application. Apromo based their objection on the ground that Mr Sanchez failed to comply with directions of the Commission.

[8] Mr Sanchez did not attend the non compliance hearing and on 12 September 2014 correspondence was sent to Mr Sanchez informing him of Apromo’s s.399A application. Mr Sanchez was directed to file submissions and other documentary material in respect of Apromo’s application by close of business, on 22 September 2014. Mr Sanchez was advised that if he failed to comply with this direction, his application would be dismissed.

[9] Mr Sanchez did not file any material with the Commission or contact the Commission to seek an extension.

[10] 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.

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

[12] A party who lodges an application for an unfair dismissal remedy has an obligation to ensure that he or she complies with the directions of the Commission. A party who intends being absent from Australia is required to take steps to ensure that he or she either provides instructions to his or her representative or that he or she is able to respond to directions of the Commission. A party cannot expect that the matter will be kept on hold until he or she returns to Australia.

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

[14] After considering all the material, Mr Sanchez’s 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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