Kate Murphy v JWS Piggott Pty Ltd T/A Hervey Bay Auto Electrix

[2015] FWC 3111

[2015] FWC 3111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kate Murphy
v
JWS Piggott Pty Ltd T/A Hervey Bay Auto Electrix
(U2015/2706)

COMMISSIONER SIMPSON BRISBANE, 13 MAY 2015

Application for relief from unfair dismissal - application dismissed.

[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 in Brisbane on 2 February 2015. The application was made by Ms Kate Murphy (the Applicant) and the respondent employer is Purcell’s JWS Piggott Pty Ltd T/A Hervey Bay Auto Electrix (the Employer).

[2] A conciliation conference was held by Fair Work Commission on 25 February 2015 but was unsuccessful in settling the matter.

[3] The application was then referred to my Chambers for Arbitration. A Directions Hearing was listed for Thursday 30 April at 10.00am.

[4] Attempts to make contact with the Applicant by the telephone number provided by the Applicant were made without success. Correspondence was sent to the Applicant from my Chambers, both by email and to the Applicant’s home address stipulated on her application, requesting a response by close of business Friday 8 May 2015. I note that the correspondence also advised the Applicant that “Should you fail to provide any reasons by the nominated time your application may be dismissed”.

[5] To date no response in any form has been received from the Applicant. The notifications from the Tribunal have all been directed to the email address provided by the Applicant on her application, which is the same email address that the Applicant has used in the course of this matter and had previously acknowledged and responded to email correspondence from the Tribunal. Confirmation receipts for emails sent have been received. A further attempt was made on the 12 May 2015 without success.

Consideration

[6] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[7] The Full Bench of Fair Work Commission in Sayer v Melsteel Pty Ltd  1considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to Fair Work Commission to consider exercising the power of the Tribunal under s.587(1). Sayer further considers that it would not be inconsistent with s.587(1) to dismiss the application without examining the merits.

[8] I adopt the approach of the Full Bench in Sayer in this matter.

[9] The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above.

[10] Accordingly the matter is dismissed.

COMMISSIONER

 1   Sayer v Melsteel[2011] FWAFB 7498

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