John Kuster v Facade Systems Pty Ltd

[2012] FWA 3649

[2012] FWA 3649

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Kuster
v
Facade Systems Pty Ltd
(U2011/11605)

COMMISSIONER HARRISON SYDNEY, 27 APRIL 2012

Termination of employment - unfair dismissal - failure of applicant to attend and prosecute application.

[1] This matter concerns an application by Mr John Kuster (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is Facade Systems Pty Ltd.

[2] The Applicant’s employment was terminated on 17 August 2011 and he lodged an application for relief on 9 September 2011, some 9 days after the statutory 14 day period for lodgement.

[3] Attempts to resolve the matter were unsuccessful and formal directions were issued requiring the Applicant to file an outline of submissions, witness statements and any other documents in support of an extension of time for lodgement by 9 January 2012. Concurrently the matter was listed for hearing/conference on 3 February 2012.

[4] The Applicant failed to comply with the directions.

[5] On 15 February the matter was listed for a non-compliance hearing on 23 February and the Respondent was excused from attendance.

[6] The Applicant was hospitalised for two periods in January and February following a vehicle accident. A medical certificate was provided stating he was “unfit for court attendance” until 31 March 2012. Hence the 3 and 23 February listings were cancelled.

[7] The issue of non-compliance was again listed for hearing on 3 April. The Applicant did not appear and when telephoned by my Associate he stated he did not receive the Notice of Listing. I then spoke to the Applicant and he agreed he would advise my Chambers by 5 April whether or not he intended to prosecute the extension of time application.

[8] The Applicant did not contact my Associate as agreed.

[9] Further attempts to contact the Applicant were made and on 11 April he advised my Associate he needed to take legal advice and would advise of his position within a “few days”.

[10] In the ensuing period numerous attempts to contact the Applicant on landline and mobile telephones and via email requesting him to contact Chambers urgently have failed.

[11] Section 577 of the Act requires the Tribunal to perform its functions and exercise its powers in a manner that is fair, just, speedy, informal and avoids unnecessary technicalities.

[12] In this matter I am satisfied that the Applicant has been provided a fair go all round pursuant to s.381(2) of the Act. The Respondent is also entitled to a fair go in terms of having this application determined within a reasonable period of time.

[13] The Applicant has been on notice as to the consequence of non-compliance and in my opinion has been given more than a fair opportunity to prosecute his application.

[14] In these circumstances I have decided to dismiss the application pursuant to s.587(3) of the Act.

[15] An order to this effect will issue in conjunction with this decision.

COMMISSIONER

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