Chris Luscombe v Garmex Pty Limited
[2011] FWA 899
•10 FEBRUARY 2011
[2011] FWA 899 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Chris Luscombe
v
Garmex Pty Limited
(U2010/12488)
COMMISSIONER MCKENNA | SYDNEY, 10 FEBRUARY 2011 |
Termination of employment - matter dismissed for want of prosecution.
[1] On 14 September 2010, Chris Luscombe (“the applicant”) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”). Garmex Pty Limited (“the respondent”), in its employer’s response to the application, contended that the termination of employment was the result of redundancy of the applicant’s former sales position.
[2] Subsequent conciliation did not result in a settlement of the matter. As such, directions were issued on 17 November 2010 in anticipation of an arbitration scheduled to commence on 10 February 2011. Relevantly, the applicant was directed to file and serve his outline of submissions, witness statements and any other documentary materials by no later than noon on 13 December 2010.
[3] The applicant did not file and serve any materials pursuant to the directions and, on 23 December 2010, Acton SDP listed the matter by telephone conference concerning the non-compliance. There was no appearance by or on behalf of the applicant on 23 December 2010 and, the transcript notes, various attempts by staff of Fair Work Australia to contact the applicant about his application had been unsuccessful. In the circumstances, Acton SDP determined to amend the directions, such as to require the applicant to attend the hearing/conference scheduled for 10 February 2011; and to relieve the respondent from compliance with the earlier directions concerning the filing of materials and also of the requirement to attend the hearing. Her Honour noted that in the event the applicant failed to attend the proceedings on 10 February 2010 it was probable the application would be dismissed.
[4] The matter was subsequently allocated to me and, at today’s proceedings, there was no appearance by or on behalf of the applicant, nor any adjournment request or other form of communication concerning the application or the applicant’s attendance. Endeavours today to contact the applicant by telephone concerning the non-attendance were unsuccessful, as had been the case with earlier endeavours by staff of Fair Work Australia.
[5] I have considered matters including: (a) the applicant’s failure to file and serve materials in accordance with the directions by 13 December 2010 (or at a later date); (b) the applicant’s non-attendance, without explanation or communication, before Acton SDP on 23 December 2010 in the proceedings concerning failure to comply with the original directions; and (c) the applicant’s failure, without explanation or communication, to attend the proceedings listed today.
[6] Having regard to these matters, I have determined, on my own initiative pursuant to s.587(3)(a) of the Act, to dismiss this application for want of prosecution pursuant to s.587(1) - which specifies, “without limiting”, the circumstances when Fair Work Australia may dismiss an application. An order thereto has been issued in conjunction with the publication of this decision.
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