Amelia-Jay Petschel v Smithfield Pharmacy No1 Pty Ltd T/A Star Discount Chemist

[2019] FWC 3670

[2019] FWC 3670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amelia-Jay Petschel
v
Smithfield Pharmacy No1 Pty Ltd T/A Star Discount Chemist
(U2019/1428)

COMMISSIONER SIMPSON BRISBANE, 28 MAY 2019

Application for an unfair dismissal remedy -

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Ms Amelia-Jay Petschel who alleges that the termination of his employment with Smithfield Pharmacy No1 Pty Ltd T/A Star Discount Chemist (the Employer) was unfair. The application was lodged on 11 February 2019.

[2] The matter was listed for Conciliation, by telephone before a Fair Work Commission Conciliator at 9:15am on 13 March 2019 which was not successful.

[3] The application was then referred to my Chambers for Arbitration and a Directions Hearing by telephone was listed at 10:00am 2 May 2019. A Notice of Listing was sent to both parties by email notifying them of this Directions Hearing on 18 April 2019.

[4] Before the Directions Hearing, my Associate made several attempts to make contact with Ms Petschel on both telephone numbers she provided to the Commission without success. My Associate left a voicemail requesting Ms Petschel urgently contact chambers. Ms Petschel did not make any attempt to contact chambers.

[5] Correspondence was then sent to Ms Petschel from my Chambers by email requesting an explanation for her non-attendance at the Directions Hearing by 5pm 9 May 2019. To date there has been no response. I note that the correspondence also advised Ms Petschel that:

“If no explanation is received from you in writing by close of business on Thursday 9 May 2019, the Commissioner may give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.”

[6] As at 28 May 2019, no response of any form has been received from Ms Petschel. Ms Petschel has not made any attempt to contact the Commission. The notifications from the Commission have previously been directed to the email address provided by Ms Petschel on her application. Ms Petschel requested she be contacted by email on her application.

Consideration

[7] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[8] The Full Bench of Fair Work Commission in Sayer v Melsteel  1Pty Ltd considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to Fair Work Commission to consider exercising the power of the Tribunal under s.587(1). Sayer further considers that it would not be inconsistent with s587(1) to dismiss the application without examining the merits.

[9] I adopt the approach of the Full Bench in Sayer in this matter.

[10] The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above.

[11] Accordingly the matter is dismissed.

COMMISSIONER

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 1   Sayer v Melsteel[2011] FWAFB 7498.