Sezar Salman v Mechanical plumbing services

[2016] FWC 1538

[2016] FWC 1538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sezar Salman
v
Mechanical plumbing services
(U2016/3865)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 MARCH 2016

Application for relief from unfair dismissal.

[1] On 15 January 2016, Mr Sezar Salman made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Salman’s employment had been terminated by Mechanical plumbing services on 24 December 2015. His application was not made within 21 days of the date of the dismissal.

[2] On 19 January 2016, the Fair Work Commission telephoned Mr Salman and explained the out of time process. Later that same day correspondence was sent to Mr Salman stating that his application had been lodged outside the legislated timeframe of 21 days. The correspondence advised that the matter would be listed for a conference/hearing, where a Member of the Commission would determine whether to allow an extension of time for the lodgement of his application.

[3] On 28 January 2016, directions were issued and the matter was listed for a conference/hearing.

[4] Mr Salman was directed to file an outline of argument, statements of evidence and a document list by noon, 5 February 2016.

[5] On 5 February 2016, an SMS was sent to Mr Salman reminding him that written submissions were due to be filed that day. Later that same day Mr Salman telephoned the Commission. The direction was explained to Mr Salman including the information that he was required to provide as his submissions.

[6] On 5 February 2016, Mr Salman filed his submissions in support of granting an extension of time.

[7] On 8 February 2016, Mechanical plumbing services filed its submission objecting to an extension of time being granted.

[8] The matter was listed for a conference/hearing before Commissioner Bissett on 19 February 2016.

[9] Mr Salman did not attend the conference/hearing. Mechanical plumbing services made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Salman had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Mechanical plumbing services’ oral application.

[10] On 19 February 2016, Mr Salman was sent correspondence informing him of Mechanical plumbing services’ section 399A application. Mr Salman was directed to file submissions and other documentary material in respect of Mechanical plumbing services’ application by close of business, on 26 February 2016. Mr Salman was advised that if he failed to comply with this direction, his application would be dismissed.

[11] Mr Salman did not file any material with the Commission.

[12] 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.

[13] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[14] As Mr Salman did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[15] As Mr Salman has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Salman has failed to respond to the many attempts by the Commission to contact him. Apart from filing a brief email to explain why he filed his application late, he did not attend the conference/hearing, at which his application for an extension of time was to be considered, he did not advise the Commission or the parties of his non-attendance at the conference/hearing. In those circumstances, I will exercise my discretion and dismiss Mr Salman’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577868>