Rosario Ierna v B.M.D. Constructions Pty Limited

[2024] FWC 2250

[2024] FWC 2250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rosario Ierna
v

B.M.D. Constructions Pty Limited

(U2024/8032)

COMMISSIONER YILMAZ MELBOURNE, 21 AUGUST 2024

Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative.

1. Mr Rosario Ierna (the Applicant) lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of his employment with B.M.D. Pty Limited (the Respondent). 

1. Mr Ierna was employed in the position of Foreperson from 29 August 2022 until his dismissal on 14 June 2024 for the reason of redundancy. The unfair dismissal application was lodged on 11 July 2024.

1. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 5 July 2024. The application was therefore filed 6 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

1. Mr Ierna was self-represented, and the Respondent was represented by Drayton’s Workplace Consulting at the case management hearing on 1 August 2024. Directions for filing of materials were agreed and issued following the case management hearing on the same day. The Applicant’s materials were due on 8 August 2024. However, the Applicant did not file any extension of time submissions.   

1. On 9 August 2024, an email was sent to the Applicant as he had not filed any submissions and he was warned that his application may be dismissed. Later that day Mr Ierna responded that he would file his materials by close of business. On 13 August 2024, a further email was sent to the parties about the Applicant’s non-compliance and consequences of a decision on the materials before it, a dismissal of the application for want of prosecution on its own initiative or on application by the Respondent. No further communication was received from the Applicant since the Applicant’s email of 9 August 2024. However, the Respondent inquired about the application on 16 August 2024.  

1. On 21 August 2024, the extension of time hearing did not proceed but instead dealt with the non-compliance with directions. This approach was consistent with the email sent to the parties on 16 August 2024 advising that a decision will be made based on the materials before the Commission and as the Applicant failed to comply the matter is likely to be dismissed. 

1. The Applicant did not attend nor did he respond to any efforts made by my Chambers to contact him prior to and on the day of the hearing. My Chambers emailed and attempted to contact the Applicant at 2:03pm and 2:08pm on the mobile phone number provided in the application. The Applicant did not respond.

The Legislation

1. The Commission may on its own motion dismiss an application subject to s.587 of the Act. 

1. Section 587 of the Act provides as follows:

“587  Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)   the application is not made in accordance with this Act; or

(b)   the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)   is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.”

Consideration and Conclusion

1. Having considered the material before the Commission, including the failure of the Applicant to file any materials in support of an extension of time, having failed to contact the Commission, attend the hearing or respond to communication from the Commission on the day, I am satisfied that the application for a remedy for an unfair dismissal should be dismissed.  

1. Further at the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).

1. The Commission may dismiss on its own motion where it considers that the matter cannot be prosecuted because of failure by the Applicant to comply with directions or engage with the Commission. In this instance Mr Ierna has not complied with the directions nor responded to the multiple attempts by the Commission to engage with him. I am also satisfied that through those attempts to contact him, the Applicant was on notice of the risk that failure to contact the Commission, that his matter may be dismissed.

Order

1. On this basis, Mr Ierna’s application is dismissed for failure to comply with the Commission’s directions and his failure to engage with the Commission pursuant to s.587 of the Act.

COMMISSIONER

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