M Umar v Foamco Industries Pty. Limited T/A Foamco Industries

[2011] FWA 4195

[2011] FWA 4195

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

M Umar
v
Foamco Industries Pty. Limited T/A Foamco Industries
(U2011/5792)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 1 JULY 2011

Application for an unfair dismissal remedy - extension of time - application dismissed.

[1] On 8 March 2011, Mr M Umar (the applicant) filed an application for an unfair dismissal remedy, pursuant to s.394 of the Fair Work Act 2009 (the Act). The application arises out of the termination of his employment with Foamco Industries Pty. Limited T/as Foamco Industries (the respondent). The application records the dismissal date as 20 February 2011. The application was filed out of time.

[2] Section 394(3) of the Act provides that a further period for filing an application, beyond the 14 day time limit, may be allowed if Fair Work Australia (FWA) is satisfied there are exceptional circumstances.

[3] On 18 March 2011, the matter was listed for Conciliation by Telephone before a Fair Work Australia Conciliator. The matter was not settled.

[4] On 12 May 2011, a Notice of Listing with directions was dispatched advising that the matter was listed for Conference/hearing at 10.00 a.m. Friday, 17 June 2011, in relation to an extension of time. The applicant was directed to file and serve on the respondent an outline of submissions and any witness statements and other documentary material in support of an extension of time for the lodgement of the application by noon Thursday, 26 May 2011. The respondent was directed to file and serve on the applicant an outline of submissions and any witness statements and other documentary material in opposition to an extension of time by noon, Thursday, 9 June 2011. No submissions were received from either party.

[5] The applicant’s representative, Mr K Boden of Starnet Legal Pty Ltd, had prior to the hearing on 17 June 2011, advised Fair Work Australia that the matter was expected to settle, but no formal advice was received.

[6] The matter proceeded to hearing on 17 June 2011 but there was no appearance from the applicant or his representative or from the respondent. The applicant’s representative was contacted shortly after the scheduled hearing time and his office advised Fair Work Australia that the matter was in the process of being settled. Starnet Legal Pty Ltd was requested to file a Notice of Discontinue but to date no such notice has been received.

[7] In the circumstances there is nothing before me that demonstrates exceptional circumstances to warrant an extension of time. The application is dismissed.

SENIOR DEPUTY PRESIDENT

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