Vainekatu Samuel v Erifen Pty Ltd T/A Daily Fresh Pty Ltd

[2013] FWC 8941

[2013] FWC 8941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vainekatu Samuel
v
Erifen Pty Ltd T/A Daily Fresh Pty Ltd
(U2013/10870)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 25 June 2013, Mr Vainekatu Samuel made an application for remedy for unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Samuel’s employment had been terminated by Erifen Pty Ltd T/A Daily Fresh Pty Ltd (Daily Fresh) on 20 June 2013.

[2] The matter was the subject of conciliation on 8 August 2013 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Samuel was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 30 September 2013.

[4] Mr Samuel did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 11 October 2013.

[5] On 14 October 2013, Daily Fresh filed an objection to the application and sought the dismissal of Mr Samuel’s application. Daily Fresh based their objection on grounds which include:

a. failure to comply with directions; and

b. failure to attend the non compliance hearing.

[6] On 15 October 2013, Mr Samuel was sent correspondence informing him of Daily Fresh’s section 399A application. Mr Samuel was directed to file submissions and other documentary material in respect of Daily Fresh’s application by close of business, on 29 October 2013. Mr Samuel was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Samuel did not file any material with the Fair Work Commission (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] I am satisfied that Daily Fresh’s objection filed on 14 October 2013 is an application to have the matter dismissed for Mr Samuel’s failure to comply with a direction and failure to attend the non compliance hearing.

[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 Samuel 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 Samuel’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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