Corey Paul Rebetzke v Terrel Estate Pty Ltd
[2011] FWA 61
•5 JANUARY 2011
[2011] FWA 61 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Corey Paul Rebetzke
v
Terrel Estate Pty Ltd
(U2010/12814)
COMMISSIONER ROBERTS | SYDNEY, 5 JANUARY 2011 |
Termination of employment – s.394 of the Act - failure of applicant to comply with directions or otherwise pursue application - application struck out.
[1] This decision concerns an application by Mr Rebetzke lodged on 28 September 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 Terrel Estate Pty Ltd (the Company).
[2] On or about 14 October 2010 the Company filed an objection to the application on the grounds that the application was lodged outside the 14 day time limit prescribed by the Act and that the termination was not at the initiative of the employer.
[3] The matter was listed before me for hearing in Griffith on 9 December 2010 to determine the extension of time application and the Company’s jurisdictional objection, with directions issued for the parties to file outlines of submissions and witness statements. Mr Rebetzke did not comply with the directions. Numerous attempts were made to ascertain whether any material would be filed by contacting Mr Rebetzke’s solicitors, Steven Ward & Co, but such efforts were unsuccessful.
[4] On 30 November 2010 a letter was sent from my office to Mr Rebetzke’s solicitors in the following terms:
“I refer to the above matter which was previously listed for arbitration on 9 December 2010. The hearing was subsequently adjourned due to the failure of the Applicant to comply with Directions.
Commissioner Roberts has now suspended the directions issued on 2 November and extended the time for the filing of the applicant’s material until Monday 6 December 2010 (copy to the Respondent). Please note that if such documents are not received in our office by close of business on 6 December 2010, consideration will be given for the Applicant’s application to be dismissed.
The Respondent will be notified of the date to submit its material if the above directions are complied with by the Applicant. A hearing date will be set if required in due course.”
[5] On 7 December 2010, a letter dated 2 December was received from Steven Ward & Co which stated:
“We refer to the above matter and to the orders made by the Tribunal requiring a response by 17 November 2010.
We advise that our client has not responded to our request for information, and we do not consider ourselves instructed at this stage.
We also note that we have received a cancellation notice for the hearing of the initial issue on 9 December 2010. We apologise to the Tribunal for those difficulties which are beyond our control.
If you [sic] receive further instructions from Mr Rebetzke, we will be in contact with you.”
[6] On 9 December 2010 a letter was sent from my office to Mr Rebetzke in the following terms:
“I refer to the above application filed on 28 September 2010.
The matter was listed for jurisdiction hearing in Griffith on 9 December 2010. That hearing was later vacated due to the failure of you/your solicitor to file an outline of submission and witness statement(s) in accordance with the Commissioner’s directions issued on 2 November 2010.
Numerous unsuccessful attempts were made to ascertain your intention to proceed with the application. Further correspondence was sent to your solicitor on 30 November requesting materials be filed by 6 December 2010.
A letter from your solicitor dated 2 December 2010 was faxed to this office on 8 December. That letter (see attached) states that “our client has not responded to our request for information, and we do not consider ourselves instructed at this stage.”
You are now required to advise this office by close of business on Friday 17 December 2010 whether you wish to pursue your application. Please note that if you do not respond by this date, the Commissioner will consider striking your application out.”
[7] No response has been received from Mr Rebetzke to this date. After allowing Mr Rebetzke a considerable period of time in which to pursue his application, I have reached the conclusion that he no longer intends to do so.
[8] 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.”
[9] In accordance with the discretion granted to me by the above section of the Act, I hereby dismiss and strike out Mr Rebetzke’s application for relief.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR505685>
0
0
0