Mr James Lassen v Equanimity Consultants Pty Ltd T/A Empyrean Group
[2010] FWA 2612
•31 MARCH 2010
[2010] FWA 2612 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr James Lassen
v
Equanimity Consultants Pty Ltd T/A Empyrean Group
(U2009/12849)
DEPUTY PRESIDENT MCCARTHY | PERTH, 31 MARCH 2010 |
Termination of employment – non-attendance – application outside time.
[1] Mr James Lassen (“the Applicant”) lodged an Application for unfair dismissal remedy (“the application”) on 9 October 2009 pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”). The application stated that the Applicant was dismissed by Equanimity Consultants Pty Ltd trading as Empyrean Group (“the Respondent”) and took effect on 21 September 2009.
[2] The matter was allocated to me in late November 2009 and I issued directions on 1 December 2009. Submissions were lodged on behalf of the Applicant and the Respondent.
[3] The matter was listed for conference/hearing on 16 February 2010 but this listing was cancelled and a further listing was issued for 18 March 2010.
[4] On 5 March 2010 I had wrote to the Applicant requesting further information as it appeared that the application had been lodged outside the allowable time. I also wrote to the Respondent as it appeared the Respondent may be covered by the Small Business Fair Dismissal Code. Of course by operation of s. 396 of the FW Act I must initially decide these matters.
[5] On 18 February 2010 the Respondent lodged an Objection to Application for Unfair Dismissal Remedy on grounds that, (i) it was lodged outside the allowable time; (ii) the Respondent was subject to the Small Business Fair Dismissal Code; and (iii) that the application was frivolous, vexatious and had no reasonable prospect of success. A Small Business Fair Dismissal Code checklist had also been completed and returned on 11 March 2010. That checklist indicated that the Respondent employed less than 15 people, that the Applicant had been employed for less than 12 months and that the Applicant had been dismissed for reasons of serious misconduct.
[6] I received nothing from the Applicant in response to my letter of 5 March 2010.
[7] On 18 March 2010 the Applicant did not attend the hearing. The Respondent attended and requested that the application be dismissed. I wrote to the Applicant on 18 March 2010 and requested that he provide an explanation for his non-attendance. I advised that should I receive no response I would deem his application to have been discontinued. I received no response.
[8] In light of the submissions made by the Respondent and documentation lodged I have decided I find that the application was lodged outside the time allowed and I do not agree to extend that time.
[9] Furthermore, and in any event, I deem that the Applicant has discontinued the application and waive any requirement for a Notice of Discontinuance to be lodged.
DEPUTY PRESIDENT
Appearances:
N Marshall, for the Equanimity Consultants Pty Ltd trading as Empyrean Group
Hearing details:
Perth:
2010
18 March.
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