Joshua Lazarus v Pulse Interactive Pty Ltd

[2013] FWC 8161

[2013] FWC 8161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Lazarus
v
Pulse Interactive Pty Ltd
(U2013/10263)

COMMISSIONER DEEGAN CANBERRA, 22 OCTOBER 2013

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

[1] On 6 June 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Joshua Lazarus (the applicant) alleging he had been unfairly dismissed by Pulse Interactive Pty Ltd (the employer)

[2] The matter was listed for telephone conciliation on 17 July 2013 but could not take place as the applicant was unable to be contacted. Accordingly, the matter was referred for formal proceedings.

[3] Directions were issued on 23 July 2013 requiring the applicant to file with the Commission and serve on the respondent an outline of submissions and evidentiary materials in support of his application by no later than 5pm Tuesday, 18 August 2013. The applicant failed to comply with these directions.

[4] From 22 August 2013, numerous attempts were made to contact the applicant regarding his non-compliance and messages were left on the applicant’s phone requesting him to contact the Commission.

[5] As the applicant did not contact the Commission as requested, an email was sent on 30 August 2013 advising him to contact the Commission immediately if he wished to pursue his application. Again, no contact was made.

[6] On 18 September 2013, the employer lodged an application pursuant to s.399A of the Act requesting that the matter be dismissed on the basis that the applicant had failed to comply with the directions. The matter was then set down for hearing of the s.399A application and a notice of listing was issued which noted that failure to participate in the telephone hearing will result in the dismissal of the application for unfair dismissal remedy.

[7] The hearing subsequently took place on 11 October 2013 and the applicant was unable to be contacted.

[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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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] As a consequence of the applicant’s failure to pursue his application, provide reasons for his failure to comply with directions and participate in the hearing of the s.399A application, I have decided to dismiss his application for unfair dismissal remedy. An order [PR543464] dismissing the application is published separately.

Appearances:

No appearance for the applicant.

Ms A. Labunda, for the respondent.

Hearing details:

2013.

Canberra:

October 11 (by telephone)

Printed by authority of the Commonwealth Government Printer

<Price code A, PR543458>