Miguel Serrano v CNE Concrete Pumping

[2014] FWC 8215

[2014] FWC 8215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miguel Serrano
v
CNE Concrete Pumping
(U2014/8689)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] On 8 August 2014, Mr Miguel Serrano made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Serrano’s employment had been terminated by CNE Concrete Pumping on 8 July 2014.

[2] The matter was listed for conciliation on 5 September 2014 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Serrano was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 27 October 2014.

[4] Mr Serrano did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 31 October 2014.

[5] Mr Serrano did not attend the non compliance hearing. CNE Concrete Pumping made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Serrano had failed to comply with the direction of the Fair Work Commission. Commissioner Roe waived compliance with the Fair Work Commission Rules 2013 and accepted CNE Concrete Pumping’s oral application.

[6] On 11 November 2014, Mr Serrano was sent correspondence informing him of CNE Concrete Pumping’s section 399A application. Mr Serrano was directed to file submissions and other documentary material in respect of CNE Concrete Pumping’s application by close of business, on 17 November 2014. Mr Serrano was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Serrano 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 Serrano 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 Serrano’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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