Mr Danny Andri v Partout Pty Ltd T/A Statewide Bearings

[2012] FWA 3106

[2012] FWA 3106

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Danny Andri
v
Partout Pty Ltd T/A Statewide Bearings
(C2012/2973)

COMMISSIONER CLOGHAN PERTH, 11 APRIL 2012

Application to deal with contraventions involving dismissal.

[1] On 8 March 2012, Mr Danny Andri (“the Applicant”) made application to Fair Work Australia (FWA) to deal with a general protections dispute in which he alleged that he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (“the FW Act).

[2] The application was made pursuant to s.365 of the FW Act.

[3] Mr Andri alleged that he was dismissed by Partout Pty Ltd T/A Statewide Bearings (“the Employer”).

[4] It is not in dispute that Mr Andri was dismissed by the Employer on 24 November 2012.

[5] The application was the subject of a conference on 21 March 2012.

[6] At the conference, the Applicant was advised that he had not filed his application within the standard statutory time of 60 days as required in paragraph 366(1)(a) of the FW Act.

[7] Mr Andri was also advised that FWA may allow a further period in which the application can be filed (see paragraph 366(1)(b) of the FW Act) if it is satisfied there are exceptional circumstances taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[8] The Applicant specifically requested that he be able to make a submission seeking to have the period in which to file the application extended to 8 March 2012.

[9] On 22 March 2012 the Applicant was required, by way of procedural directions, to make his written submission on or before 4pm on 5 April 2012. Mr Andri’s written submission was to address the criteria in paragraph [7].

[10] Mr Andri did not provide any written submission. Further, Mr Andri has not communicated with the Tribunal why he was unable to provide the written submission.

[11] In the Statement and Directions issued on 22 March 2012, I advised the Applicant should he not provide a written submission, the application would be dismissed for want of prosecution.

[12] Having considered the information provided by the Applicant in his application, the Employer’s response, the criteria in subsection 366(2) of the FW Act and the lack of any written submission by Mr Andri, I am satisfied that there are no exceptional circumstances to allow a further beyond the standard 60 days for the application to be made to the Tribunal.

[13] Accordingly, an order will be made dismissing the application and issued conjointly with this Decision.

COMMISSIONER

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