Jamis King v Crab Claw Pty Ltd T/A Crab Claw Island Resort
[2012] FWA 5710
•24 JULY 2012
[2012] FWA 5710 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jamis King
v
Crab Claw Pty Ltd T/A Crab Claw Island Resort
(U2012/7821)
COMMISSIONER SIMPSON | BRISBANE, 24 JULY 2012 |
Application for unfair dismissal remedy - FWA may dismissal an application on its own motion - want of prosecution.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Darwin on 8 May 2012. The application was made by Mr Jamis King, (the applicant) and the respondent employer is Crab Claw Pty Ltd T/A Crab Claw Island Resort, (the employer).
[2] A conciliation conference was convened by Fair Work Australia on 28 May 2012 but was unsuccessful in settling the matter.
[3] The application was then referred to my Chambers for final Arbitration. The matter was then listed for a Directions/Conference 14 June 2012.
[4] At the directions conference the suggested timetable for submissions were as follows:
Applicant’s material due: 2 July 2012.
Respondent’s material: 20 July 2012.
Applicant’s Reply Submissions: 27 July 2012,
The hearing date suggested was 9 August 2012.
[5] The Applicant informed me that he had a wedding to attend and could not be available that week. He then undertook to confirm dates he would be available and to advise my chambers by close of business 14 June, or at the latest 15 June 2012.
[6] To date no advice or correspondence has been received from the Applicant in relation to this matter. My Chambers have made numerous attempts to contact the Applicant to discuss his intentions regarding the prosecution of this matter. Attempts to contact the Applicant were made by telephone on 14, 19, 20, 26, and 27 June 2012. To date no correspondence has been received from the Applicant. In addition to this, correspondence was sent by mail requesting the Applicant responds by close of business 3 July 2012. Further correspondence was sent 11 July 2012.
Consideration
[7] The Applicant has filed an application for an unfair dismissal remedy and was, until 14 June 2012, prosecuting the matter. However since the Hearing of 14 June the Applicant has failed to respond to any attempts to contact him. In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.
[8] The Full Bench of Fair Work Australia in Sayer v Melsteel Pty Ltd 1considered that in a case where an Applicant has failed to comply with directions and to attend to the prosecution of the matter it would be open to Fair Work Australia to consider exercising the power of the Tribunal under s.587(1). Sayer further considers that it would not be inconsistent with s587(1) to dismiss the application without examining the merits in such a case.
[9] I adopt the approach of the Full Bench in Sayer in this matter.
[10] The history of this matter as outlined above makes it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above.
[11] It is noted for completeness that no application has been made by the Respondent in this matter for the application to be dismissed. I rely on the power of the Tribunal to dismiss an application of its own motion. 2
[12] Accordingly the matter is dismissed. An Order will issue accordingly.
COMMISSIONER
1 [2011] FWAFB 7498 at [19].
2 S.587(3)(a).
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