Darren Townsend v Toll Autologistics
[2009] FWA 898
•29 OCTOBER 2009
[2009] FWA 898 |
|
DECISION |
Fair Work Act 2009
s.643—Termination of employment
v
Toll Autologistics
(U2009/10271)
COMMISSIONER GAY | MELBOURNE, 29 OCTOBER 2009 |
Termination of employment – dismissal of application pursuant to s.657 for failure to attend.
[1] On 13 July 2009 Mr Darren Townsend (the applicant) filed an application pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act) alleging that the termination of his employment by Toll Autologistics (the respondent) was harsh, unjust or unreasonable.
[2] A conciliation was conducted by SDP Acton on 24 July 2009. The conciliation was unsuccessful and a certificate was issued on 27 July 2009.
[3] On 29 July 2009 the applicant elected to proceed to arbitration in the Commission.
[4] A Notice of Listing with attached Directions was sent to the parties (to both the postal and email addresses cited by Mr Townsend in his application (Form R27)) on 5 August 2009. The matter was listed for arbitration at 10.00am on Friday 9 October 2009.
[5] Consistent with these Directions, on 2 September 2009 a statement was received in Fair Work Australia from the applicant. The respondent filed its material on 10 September 2009.
[6] When the matter was called on at 10.00 am on 9 October the applicant did not attend. Two representatives of the respondent attended Fair Work Australia. Shortly after 10.00 am on 9 October my Acting Associate telephoned the applicant’s two mobile phone numbers and left messages.
[7] The following correspondence was sent to the applicant on 9 October 2009:
“… The above matter was listed for Arbitration before Commissioner Gay on Friday 9 October 2009, commencing at 10am. The relevant notice of listing was dispatched on Wednesday 5 August to you at the email address … (original details supplied) and to the respondent at … (original details supplied).
When the matter come on for hearing on Friday 9 October Messrs Tomming and Timmermans appeared on behalf of Toll Autologistics. After several phone calls and a message left to two mobile phone numbers … (original details supplied), the hearing was adjourned at 10.30am on the basis that you did not make an appearance.
Section 657 of the Workplace Relations Act 1996 9(sic) (the Act) provides for the following:
Commission may dismiss application if applicant fails to attend
“If an applicant in a proceeding to an application under section 643 fails to attend the proceeding, the Commission, after giving the applicant reasonable notice and a reasonable opportunity to be heard, may dismiss the application under section 643.”
The Commissioner requests that you provide a written explanation as to your non-attendance at today’s proceeding and a commitment as to whether you intend to prosecute your application. A response is required by 5pm on Friday 23 October 2009, following which your application may be dismissed pursuant to s.657 of the Act.
Please contact me if you have any questions. I look forward to hearing from you soon… “
[8] No response to the above correspondence has been received in Fair Work Australia from the applicant.
[9] Therefore, pursuant to s.657 of the Act, the applicant having been given reasonable notice and a reasonable opportunity to be heard in relation to failure to attend the arbitration proceeding, I dismiss the application. An order to this effect will issue.
COMMISSIONER
Appearances:
J Timmermans and S Tomming appearing for Toll Autologistics.
Hearing details:
2009.
Melbourne:
October 9.
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