Simon Chakanetsa v Motorama City Motors Pty Ltd T/A Motorama Group Pty Ltd

[2014] FWC 3688

[2014] FWC 3688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Chakanetsa
v
Motorama City Motors Pty Ltd T/A Motorama Group Pty Ltd
(U2014/374)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 JUNE 2014

Application for relief from unfair dismissal dismissed.

[1] On 11 February 2014, Mr Simon Chakanetsa made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Chakenetsa’s employment had been terminated by Motorama City Motors Pty Ltd T/A Motorama Group Pty Ltd (Motorama) on 6 February 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 Chakanetsa was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 April 2014.

[4] Mr Chakanetsa requested an extension to file his submissions. A further period of time was granted and Mr Chakanetsa was required to file his material by 30 April 2014.

[5] Mr Chakanetsa did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Johns on 2 May 2014.

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

[7] On 2 May 2014, Mr Chakanetsa was sent correspondence informing him of the Respondent’s s.399A application. Mr Chakanetsa was directed to file submissions and other documentary material in respect of Motorama’s application by close of business, on 16 May 2014. Mr Chakanetsa was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Chakanetsa sent correspondence dated 16 May 2014 in which he sought the Commission’s advice in relation to obtaining legal representation.

[9] On 22 May 2014, I caused correspondence to be sent to Mr Chakanetsa providing him with a further opportunity to respond to the Commission’s correspondence dated 2 May 2014.

[10] Mr Chakanetsa did not respond to the correspondence.

[11] 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.

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

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

[14] After considering all the material, Mr Chakanetsa’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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