Ajinder Kumar v Lucky Horizon Pty Ltd
[2011] FWA 877
•9 FEBRUARY 2011
[2011] FWA 877 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ajinder Kumar
v
Lucky Horizon Pty Ltd
(U2010/3155)
COMMISSIONER ROBERTS | SYDNEY, 9 FEBRUARY 2011 |
Termination of employment - s.394 of the Fair Work Act 2009 - failure of applicant to take part in conciliation, comply with directions, attend arbitration hearing or otherwise pursue application - application struck out.
[1] This decision concerns an application by Mr Kumar lodged on 1 November 2010 pursuant to s.394 of the Fair Work Act 2009 (“the Act”). For relief in relation to the alleged unfair termination of his employment by Lucky Horizon Pty Ltd T/A Crystal Carwash Cafe (“the Company”).
[2] Mr Kumar’s application for relief was set down for conciliation by telephone on 22 November 2010 before a Fair Work Australia Conciliator. Mr Kumar failed to take part in that conciliation and his application was then set down for arbitration. The company subsequently filed an objection to the application on the following jurisdictional grounds:
- No termination of employment at the initiative of the Company.
- Mr Kumar had only been employed for some 2 months by the Company and was therefore not eligible to make an application for relief.
- Mr Kumar’s application had no reasonable prospect of success.
[3] Mr Kumar’s application then came before me for a jurisdictional hearing in Sydney on 28 January 2011. Mr Kumar was notified of the date, time and place of the hearing but did not attend. Attempts were made to contact Mr Kumar via telephone on 28 January but these were unsuccessful and the hearing did not proceed.
[4] On 28 January 2011, my Associate wrote to Mr Kumar in the following terms:
“I refer to the above matter, which was listed for jurisdictional hearing before Commissioner Roberts at Fair Work Australia in Sydney on 28 January 2011. The hearing was adjourned due to your non-appearance. Attempts to contact you by telephone on this day were also unsuccessful. I note that you also failed to attend the conciliation for this matter, which was scheduled for 22 November 2010.
You are now required to advise this office by close of business on Friday 4 February 2011 of the reasons for your non-attendance and whether you wish to pursue your application. Please note that if you do not respond by this date, or if you fail to provide proper reasons for your non-attendance, the Commissioner will consider striking your application out.”
[5] No response has been received from Mr Kumar to this date. After allowing Mr Kumar a considerable period of time in which to pursue his application, I have reached the conclusion that he does not intend to do so.
[6] Section 587 of the Act provides:
“587 Dismissing applications
(1) Without limiting when FWA may dismiss an application, FWA 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.
(2) Despite paragraphs (1)(b) and (c), FWA 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) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[7] In accordance with the discretion granted to me by the above section of the Act, I hereby dismiss and strike out Mr Kumar’s application for relief.
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