Christie McLeod v Craig Arbuthnot

[2013] FWC 2183

[2013] FWC 2183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Christie McLeod
v
Craig Arbuthnot
(C2013/2969)

COMMISSIONER RYAN MELBOURNE, 15 APRIL 2013

Application to deal with contraventions involving dismissal - application dismissed for want of prosecution.

[1] On 5 February 2013 the Applicant, through her solicitor, Charles Morgan & Associates, lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with alleged contraventions involving dismissal.

[2] The Applicant was living and working on a dairy farm in Nambrok, Victoria owned by the Respondent.

[3] On 7 February 2013 the respondent was served by the Commission with a copy of the application and other material to the address appearing in the Form F8 application.

[4] The matter was listed before me in Morwell on 14 March 2013.

[5] No response was filed by the Respondent and several attempts to contact Mr Arbuthnot by my Associate were unsuccessful.

[6] On 11 March 2013 Charles Morgan & Associates filed a Notice of Representative Ceasing to Act (form F54), which I understand was based on the fact that no further contact had been able to be made with the Applicant. I understand that attempts by Charles Morgan & Associates to contact the Applicant a few days after the application was lodged were unsuccessful.

[7] Following the filing of the form F54 my Associate made several attempts to contact the Applicant to ascertain whether she still wished to prosecute her application. Those attempts failed.

[8] No appearance was made by either the Applicant or the Respondent at the Morwell Magistrates’ Court on 14 March 2013.

[9] On 18 March 2013 I wrote to the Applicant in the following terms:

“Your general protections application filed on your behalf by Charles Morgan & Associates on 5 February 2013 with the Fair Work Commission was listed before me in the Morwell Magistrates Court on 14 March 2013.

You made no appearance at the Court.

The Notice of Listing for this Conference was sent to your legal representative, Mr Charles Morgan.

Mr Morgan filed a Notice of Representative Ceasing to Act on 11 March 2013. Mr Morgan advised that he had not been able to make contact with you.

Following receipt of this notice, my Associate tried to contact you. She left several messages on your mobile phone and has emailed you requesting that you contact my Chambers urgently.

To date you have not made any contact with the Commission.

You are directed to make contact with my Chambers by close of business 27 March 2013.

If no such contact is made, I shall assume that you do not wish to proceed with your application and I will dismiss your application.”

[10] This letter was returned to sender marked ‘left address’.

[11] In late March 2013 the Respondent made contact with my chambers to advise that he had just received the documentation served on him by the Registry on 7 February 2013 and explaining the reason for that was that the correspondence from the Commission was incorrectly addressed. Further, he advised that there was no such street in Nambrok.

[12] Charles Morgan & Associates confirms that the details of both the Applicant and the Respondent’s addresses in the application were as instructed by the Applicant.

[13] It appears clear to me from the circumstances detailed above that the Applicant had a change of mind in relation to pursuing her application after initially instructing Charles Morgan & Associates.

[14] It has been open to the Applicant at all times since filing this application to make direct contact with the Commission to indicate her intent to pursue this application, and she has not done so.

[15] The only conclusion I can draw from that then is that she does not wish to prosecute her application since around the time of instructing her solicitor to file the application.

[16] The legislation states:

“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.”

[17] I am satisfied that the Tribunal has the power to dismiss the application for want of prosecution in accordance with this section, as the jurisdiction to dismiss is not limited to the circumstances set out in ss.587(1)(a), (b) or (c). I also consider that there are sufficient grounds to dismiss the application for want of prosecution.

[18] The application is dismissed.

COMMISSIONER

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