Lyham McKerlie v Genalysis Laboratory Services Pty Ltd T/A Intertek Genalysis

[2012] FWA 10521

[2012] FWA 10521

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Lyham McKerlie
v
Genalysis Laboratory Services Pty Ltd T/A Intertek Genalysis
(C2012/5632)

COMMISSIONER BISSETT MELBOURNE, 19 DECEMBER 2012

Application to deal with contraventions involving dismissal - application dismissed.

[1] On 11 October 2012 Lyham McKerlie (the Applicant) made an application Fair Work Australia claiming that his employment had been terminated by Genalysis Laboratory Services (the Respondent) in contravention of the general protections provisions of the Fair Work Act 2009 (the Act).

[2] The application was listed for a conference in accordance with the requirements of s.386 of the Act in Alice Springs on 3 December 2012.

[3] In the week prior to the conference date my associate attempted to contact the Applicant to confirm his attendance at the conference.

[4] The Applicant failed to attend the conference, which was attended by a representative of the Respondent.

[5] Following the conference my associate sent an email to the email address on record and posted a copy of the email to the address on record for the Applicant. That email said:

The abovementioned matter was listed for a Conference before Commissioner Bissett at 9:30am on Monday, 3 December 2012 at Alice Springs Court House. You have failed to attend the Conference.

Commissioner Bissett now requires that you provide an explanation as to your non-attendance and indicate how your application should progress. You are to provide this response in writing by close of business on Monday, 10 December 2012. If you fail to do so, you application may be dismissed and the matter closed.

[6] No response has been received from the Applicant as at the time of making this decision.

[7] Section 587 of the Act states:

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.

[8] The failure of the Applicant to respond to any communication with respect to his application leads me to conclude that he has no intention of prosecuting the application.

[9] For this reason, in accordance with the provisions of s.587(1) I dismiss the application. An order to this effect will be issued.

COMMISSIONER

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