Leeann Jamal v Former Mifact Mental Illness Fellowship now Vista Vocational T/A Cafe Pazzini
[2012] FWA 6426
•30 JULY 2012
[2012] FWA 6426 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leeann Jamal
v
Former Mifact Mental Illness Fellowship now Vista Vocational T/A Cafe Pazzini
(U2012/6253)
COMMISSIONER DEEGAN | CANBERRA, 30 JULY 2012 |
Unfair Dismissal; extension of time; application dismissed.
[1] On 20 March 2012 Ms Leeann Jamal (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal in respect of the termination of her employment. In her application the applicant identified her previous employer as “Former Mifact Mental Illness Fellowship now Vista Vocational” and cited the date on which the dismissal took effect as “end of February 2012”.
[2] The matter was listed for conciliation on 5 April 2012. Prior to that conference taking place, Mental Illness Fellowship Victoria (the respondent) filed a response to the application, raising a jurisdictional objection to the application on the basis that the respondent had never employed the applicant. When contacted by Fair Work Australia on 29 March, a representative from the respondent evidenced a willingness to participate in the conference, despite the jurisdictional objection, so the matter remained listed for 5 April.
[3] On 5 April repeated attempts were made to contact the applicant by phone. The applicant did not answer her phone at this time so the conciliation could not take place. Messages were left for the applicant, requesting her to contact Fair Work Australia urgently. On 10 April the applicant contacted Fair Work Australia and indicated that she wished to proceed with the application. The matter was listed for conciliation on 2 May, though as the applicant’s support worker was not available on this date the listing was cancelled and the matter was relisted for 16 May. On 16 May the applicant was un-contactable by phone so the conciliation could not take place. Fair Work Australia wrote to the applicant’s support worker on 21 May in an effort to ascertain whether the applicant wished to pursue her application. The response from the support person was unclear, so the matter was further allocated for arbitration.
[4] On 24 May the matter was listed for a jurisdictional conference/hearing to take place on 13 June. On the information supplied by the applicant in the application it was apparent that the alleged dismissal had occurred more than 14 days before the application was lodged.
[5] A phone call was made by Fair Work Australia to the applicant on the afternoon of 12 June to remind the applicant that the hearing was listed to take place the following morning and to confirm her attendance. The applicant indicated that she wished to pursue her application and that she would be in attendance. The applicant confirmed the address of Fair Work Australia in Canberra and the exact time of the hearing during the course of the conversation.
[6] At the hearing on 13 June, Mr Bussenschutt appeared for the respondent. There was no appearance for the applicant. When Fair Work Australia tried to contact the applicant by phone at the time the hearing commenced, her phone was switched off. Her nominated support worker was also un-contactable.
[7] Given there was no appearance by the applicant the hearing was adjourned. Directions were issued that day requiring the applicant to lodge any submissions and witness statements in relation to the jurisdictional objection by 5pm on 27 June 2012. The applicant did not file any submissions or witness statements by the stipulated time. Again Fair Work Australia attempted to contact the applicant via phone, though her phone was diverted to a message system. Messages were left regarding the non-compliance.
[8] On 2 July 2012, a letter was sent by express post to the applicant requesting that she contact Fair Work Australia as a matter of urgency. This letter indicated that if she had not contacted Fair Work Australia by 5pm on 13 July 2012 the matter would be decided on the basis of the material provided by the respondent. The applicant has not contacted Fair Work Australia to date.
[9] The applicant has not offered an explanation as to why the application was not made within 14 days of her dismissal taking effect. The applicant has also failed to make any submissions as to why time should be extended under s.394(3) of the Act, despite being provided with a number of opportunities to do so. The applicant has made no submissions concerning the respondent’s claim that it was not the applicant’s employer.
[10] Section 587 of the 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 the Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success
(2) Despite paragraph (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application is:
(a) frivolous or vexatious; or
(b) has no reasonable prospect of success.
(3) FWA may dismiss an application:
(a) on its own initiative
(b) on application.
[11] I note that s.587(1) does not limit the circumstances in which Fair Work Australia may dismiss an application.
[12] In all the circumstances of this matter, I have decided to dismiss the application pursuant to s.587(3)(1) of the Act for want of prosecution by the applicant. In the circumstances it is unnecessary for me to determine whether or not the named respondent was the employer of the applicant or whether the application should be accepted despite being lodged more than 14 days after the termination took effect.
[13] The application is dismissed.
COMMISSIONER
Appearances:
No appearance for the applicant.
Mr G Bussenschutt for the respondent.
Hearing details:
2012.
Canberra:
June 13.
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