Nazzareno Scuruchi v Prolux Electrical Contractors T/A Prolux Electrical

[2014] FWC 5014

[2014] FWC 5014

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nazzareno Scuruchi
v
Prolux Electrical Contractors T/A Prolux Electrical
(U2014/4524)

COMMISSIONER WILSON MELBOURNE, 25 JULY 2014

Application for relief from unfair dismissal.

[1] On 10 February 2014, Mr Nazzareno Scuruchi made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Scuruchi’s employment had been terminated by Prolux Electrical Contractors T/A Prolux Electrical (Prolux) on 20 January 2014.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Scuruchi was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 26 May 2014 and 16 June 2014.

[4] Mr Scuruchi requested an extension to file his submissions. A further period of time was granted and Mr Scuruchi was required to file his material by 20 June 2014 and 11 July 2014.

[5] Mr Scuruchi did not comply with this direction and the matter was listed for a non compliance hearing before me on 4 July 2014.

[6] Mr Scuruchi did not attend the non compliance hearing. Prolux made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Scuruchi had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Commission Rules 2013 and accepted Prolux’s oral application.

[7] On 7 July 2014, Mr Scuruchi was sent correspondence informing him of the Respondent’s s.399A application. Mr Scuruchi was directed to file submissions and other documentary material in respect of Prolux’s application by close of business, on 14 July 2014. Mr Scuruchi was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Scuruchi 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 Scuruchi 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 Scuruchi’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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