Jaafar Zadeh v AWX Pty Ltd T/A AWX

[2013] FWC 8322

[2013] FWC 8322 [Note: An appeal pursuant to s.604 (C2015/7099) was lodged against this decision - refer to Full Bench decision dated 9 December 2015 [[2015] FWCFB 8227] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaafar Zadeh
v
AWX Pty Ltd T/A AWX
(U2013/9722)

COMMISSIONER WILSON MELBOURNE, 28 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 20 May 2013, Mr Jaafar Mohammad Zadeh made an application for remedy for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Zadeh’s employment had been terminated by AWX Pty Ltd T/A AWX (AWX) on 30 April 2013.

[2] The matter was the subject of conciliation on 2 July 2013 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Zadeh was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 23 September 2013.

[4] Mr Zadeh did not comply with this direction and the matter was listed for a non compliance hearing before me on 27 September 2013.

[5] Mr Zadeh did not attend the non compliance hearing. AWX made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Zadeh had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Rules 2009 and accepted AWX’s oral application.

[6] On 27 September 2013, Mr Zadeh was sent correspondence informing him of the Respondent’s s.399A application. Mr Zadeh was directed to file submissions and other documentary material in respect of AWX’s application by close of business, on 11 October 2013. Mr Zadeh was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Zadeh did not file any material with the Commission.

[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 Mr Zadeh 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 Zadeh’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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