Korryn Middleton v HCoA Operations (Australia) Pty Ltd T/A Linacre Private Hospital

[2011] FWA 3070

[2011] FWA 3070

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Korryn Middleton
v
HCoA Operations (Australia) Pty Ltd T/A Linacre Private Hospital
(C2011/3655)

COMMISSIONER GOOLEY MELBOURNE, 23 MAY 2011

[1] Ms Korryn Middleton filed an application pursuant to section 365 of the fair Work Act 2009 (FW Act) alleging that her employment had been terminated because of her pregnancy and because she was temporarily absent from work.

[2] HCoA Operations (Australia) Pty Ltd filed a response to the application and denied the allegations.

[3] The matter was listed for conference on 21 April 2011 and Ms Middleton did not attend the conference and she did not contact chambers to advise that she was unable to attend.

[4] The respondent’s representatives attended the conference.

[5] On 21 April 2011 I wrote to Ms Middleton and advised that unless she provided a satisfactory explanation for her failure to attend the conference by 13 May 2011 her application would be dismissed.

[6] No response was received to that correspondence.

[7] My associate left messages for Ms Middleton on her mobile phone on 16 May and 17 May 2011 requesting she call Fair Work Australia but no response has been received.

[8] Section 587 of the FW Act provides as follows:

“587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[9] The applicant failed to attend the conference and failed to provide any explanation for her non attendance. This caused the respondent to incur the costs of attending the conference.

[10] Prior to determining to dismiss the application for want of prosecution the applicant was advised that her failure to provide a satisfactory explanation for non attendance at the hearing could lead to the dismissal of her application. Despite this Ms Middleton did not contact Fair Work Australia. Further messages were left on Ms Middleton’s mobile phone requesting she contact Fair Work Australia and she has not done so.

[11] The applicant has been given a reasonable opportunity to have her application heard and she has failed to provide any reasonable basis for not being in a position to attend the conference.

[12] The applicant’s conduct is discourteous and unacceptable and she has failed to prosecute her own application in a reasonable manner.

[13] In all of these circumstances, it was appropriate that the application be dismissed. An order [PR509637] to that effect will issue with this decision.

COMMISSIONER

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<Price code A, PR509635>