Tuncay Guler v Maric Group Pty Ltd T/A Oxford Cold Storage

[2013] FWC 8857

[2013] FWC 8857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tuncay Guler
v
Maric Group Pty Ltd T/A Oxford Cold Storage
(U2013/10342)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 NOVEMBER 2013

Application for relief from unfair dismissal dismissed.

[1] On 7 June 2013, Mr Tuncay Guler made an application for remedy for unfair dismissal remedy under s.394 of the Fair Work Act 2009. The Mr Guler’s employment had been terminated by Maric Group Pty Ltd T/A Oxford Cold Storage (Oxford Storage) on 28 May 2013.

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

[2] Mr Guler was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 9 September 2013.

[3] Mr Guler did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 27 September 2013. At the hearing, an extension of time was granted to the Applicant to file his material by noon, on 11 October 2013.

[4] Mr Guler did not comply with this direction and the matter was listed for another non compliance hearing before Commissioner Wilson on 18 October 2013.

[5] Mr Guler’s did not attend the non compliance hearing. Oxford Storage made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Guler had failed to comply with the direction of the Fair Work Commission (the Commission). Commissioner Wilson waived compliance with the Fair Work Rules 2009 and accepted Oxford Storage’s oral application.

[6] On 18 October 2013, Mr Guler was sent correspondence informing him of the Respondent’s s.399A application. Mr Guler was directed to file submissions and other documentary material in respect of Oxford Storage’s application by close of business, on 1 November 2013. Mr Guler was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Guler did not file any material with the Commission.

[8] 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.

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

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

[11] After considering all the material, Mr Guler’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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