Michael Cieslak v Australian Assembly Company Pty Ltd (ACN:108 974 205) T/A Aussemble Pty Ltd

[2014] FWC 407

[2014] FWC 407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Cieslak
v
Australian Assembly Company Pty Ltd (ACN:108 974 205) T/A Aussemble Pty Ltd
(U2013/9022)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 JANUARY 2014

Application for relief from unfair dismissal dismissed.

[1] On 30 April 2013, Mr Michael Cieslak made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Cieslak’s employment had been terminated by Australian Assembly Company Pty Ltd (ACN:108 974 205) T/A Aussemble Pty Ltd (AAC) on 8 March 2013.

[2] The matter was listed for conciliation on 3 October 2013 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Cieslak was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 25 November 2013.

[4] Mr Cieslak did not comply with this direction and the matter was listed for a non compliance hearing before me on 6 December 2013.

[5] Mr Cieslak requested an extension of time to file his submissions. A further period of time was declined as I was not satisfied with the reasons Ms Cieslak provided to support his request.

[6] The matter proceeded to a non compliance hearing. Mr Cieslak did not attend the hearing. At the hearing, AAC made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Cieslak 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 AAC’s oral application.

[7] On 6 December 2013, Mr Cieslak was sent correspondence informing him of the Respondent’s s.399A application. Mr Cieslak was directed to file submissions and other documentary material in respect of AAC’s application by close of business, on 20 December 2013. Mr Cieslak was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Cieslak did not file any material with the Commission.

[9] 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.

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

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

[12] After considering all the material, Mr Cieslak’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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