DECISION

Fair Work Act 2009
s.365—General protections (consent arbitration)

Kelley Jerkovich
v
Kinetic Power Services Pty Ltd
(C2014/4474)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 JULY 2015

Application to deal with contravention involving dismissal; company in liquidation; no steps taken by applicant to progress claim; application dismissed.

[1] On 16 May 2014, Kelley Jerkovic (Applicant) with the consent of Kinetic Power Services Pty Ltd (Kinetic) made an application under section 369(1)(b) of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dismissal dispute made under section 365 of the Act, by arbitration. Directions were issued to facilitate the arbitration and the matter was listed for hearing.

[2] At the time that the application was made, the Applicant was being represented by the electrical division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU). On 1 July 2014, Slater & Gordon Lawyers notified the Commission of it commencing to act for the Applicant. On 31 July 214, the ETU advised that it ceased to act for the Applicant.

[3] On 17 July 2014, the Commission was notified that Kinetic had been placed into administration and that the Administrator, through its representatives, wished to make submissions in the matter. The Administrator and the Applicant made various applications for the matter to be stayed to allow the administration process run its course. Kinetic was ultimately placed in liquidation.

[4] On 26 February 2015, Slater & Gordon Lawyers advised the Commission that it ceased to act for the Applicant.

[5] On 30 March 2015 the Commission issued directions for the liquidator of Kinetic and the Respondent to file submissions in support of its objection to the matter proceeding, and for the Applicant to file submissions in support of her application. The Applicant did not file any submissions as directed.

[6] On 3 July 2015 my Chambers wrote to the Applicant advising that she had until 4.00pm on Wednesday 8 July 2015 to file submissions as to why her application should not be dismissed, and was put on notice that the application is likely to be dismissed if she did not comply. The Applicant did not make any submissions.

[7] The Applicant has taken no step to progress the arbitration or to make submissions in relation to the various issues raised by the liquidator of Kinetic and the Respondent. I am satisfied that the Applicant does not intend to prosecute the claim in arbitration and in the circumstances I propose to dismiss the application. An order is separately issued in PR569328.

DEPUTY PRESIDENT

Written submissions:

Liquidator for Kinetic Power Services Pty Ltd, 10 April 2015

Kinetic Power Services Pty Ltd, 30 April 2015

Printed by authority of the Commonwealth Government Printer

The applicant, Kelley Jerkovich, sought to have an application dismissed involving the contravention of a direction by Kinetic Power Services Pty Ltd. The company was in liquidation, and Jerkovich had not taken any steps to progress the claim. The matter was heard in the Fair Work Commission. The central legal issue was whether the applicant had made any efforts to progress the claim against the now-liquidated company, and if the application should proceed despite the company's liquidation. The Commission examined whether the applicant had taken any procedural steps to progress the application and considered the implications of the company being in liquidation.

The Fair Work Commission found that Jerkovich had not taken any steps to progress the claim, and there was no evidence of any action to address the company's liquidation status. The Commission concluded that the application should be dismissed due to the lack of any procedural steps taken by Jerkovich. The Commission held that the applicant's inaction and the liquidation of the company constituted sufficient grounds for dismissing the application. As a result, the application was dismissed.

The Fair Work Commission's decision highlights the importance of procedural diligence in employment-related applications. The dismissal of Jerkovich's application underscores the necessity for applicants to take active steps to progress their claims, particularly when facing significant changes in the status of the respondent company. The Commission's ruling serves as a reminder that the failure to act can lead to the dismissal of an application, regardless of the merits of the underlying claim.

Kelley Jerkovich v Kinetic Power Services Pty Ltd

DECISION

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