Garry Druett v National Australia Bank

[2013] FWC 4256

[2013] FWC 4256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Druett
v
National Australia Bank
(U2013/7112)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 JULY 2013

Application for relief from unfair dismissal dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 4 March 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Garry Druett (the Applicant). The Applicant named the National Australia Bank (NAB) as the employer.

[2] On 25 March 2013, the Fair Work Commission (the Commission) received a Form F4 - Objection to Application for Unfair Dismissal Remedy from NAB which states that “Mr Druett has never been an employee of [NAB]. The Commission therefore does not have jurisdiction in relation to this matter.”

[3] The matter was listed for conciliation on 5 April 2013 however NAB did not wish to participate and requested that their objection to the matter be dealt with first.

[4] A file note discloses that on 5 April 2013, the Applicant contacted the Commission and discussed, amongst other things, discontinuing his application against NAB. Given this advice, the Commission sent the Applicant a Form F50 - Notice of Discontinuance.

[5] A further file note on 22 May 2013 discloses that the Applicant advised he would be filing a Notice of Discontinuance. The Commission enquired as to whether the Applicant required another Notice of Discontinuance to be sent to him but declined the offer and stated that he would get a copy from the website.

[6] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[7] Rule 6.2 of the Fair Work Australia Rules 2009 (the Rules) provides:

6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

(b) notice must be given to FWA using the form in Schedule 2 that is specified for the purpose in Schedule 1.

[8] Schedule 1 of the Rules provides Form 50 for Notice of Discontinuance.

[9] Rule 4 of the Rules provides:

FWA may dispense with compliance with any of the requirements of these Rules before or after the occasion for compliance arises.

[10] In the circumstances, I am satisfied the Applicant intended to discontinue his application but has failed to file the Notice of Discontinuance in accordance with the Rules.

[11] Pursuant to Rule 4, I have decided to dispense with the requirements of the Rules.

[12] As the application has been discontinued, the file will be closed.

DEPUTY PRESIDENT

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