Martin De Graaf v Boral Resources (Country) Pty Ltd
[2012] FWA 5666
•4 JULY 2012
[2012] FWA 5666 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Martin De Graaf
v
Boral Resources (Country) Pty Ltd
(U2012/5422)
COMMISSIONER DEEGAN | CANBERRA, 4 JULY 2012 |
Unfair dismissal - non-compliance with Directions - application dismissed..
[1] On 27 February 2012 Mr Martin De Graaf (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 his employment by Boral Resources (Country) Pty Ltd (the respondent).
[2] The matter was listed for a conciliation conference on 14 March 2012. The applicant did not answer his phone at this time so the conference could not take place. No explanation relating to the applicant’s non attendance at the conference was proffered by the applicant until a letter from a clinical psychologist was received by Fair Work Australia on 26 March, indicating that the applicant was temporarily unfit to deal with his industrial matter. A follow up fax was from the same psychologist was received by Fair Work Australia on 19 April stating that the applicant had failed to attend any appointments since the initial letter, so he could provide no further information about the applicant’s fitness to pursue his application at this time.
[3] The matter was listed for a further conciliation conference on 9 May. The applicant was again un-contactable at the time that the conference was listed for, and further attempts to contact the applicant in relation to his non appearance at the conference were unsuccessful. A representative from the respondent, Mr Sleeman, indicated that the respondent would not be interested in participating in any further attempts to conduct a conciliation so the matter was allocated for arbitration.
[4] Directions were issued on 16 May 2012, requiring the applicant to file an outline of submissions and witness statements by 6 June in preparation for the arbitration hearing which was listed for 4 July. The applicant did not file the relevant documentation by 6 June and, despite repeated attempts by my Chambers to contact him, by both telephone and email, the applicant has not filed any further documentation or had any contact with anyone from Fair Work Australia to date.
[5] Multiple messages have been left on the applicant’s voicemail service requesting him to contact Fair Work Australia. A number of emails have been sent to the email account that was provided by the applicant in his application. In the emails that have been sent to the applicant and the messages that have been left with his voicemail, and the directions that were issued on 16 May it was emphasised that failure to comply with the directions and failure to attend the arbitration hearing, would, in all likelihood, result in the application being dismissed.
[6] On 4 July 2012 when the matter was called on for hearing there was no appearance for the applicant. A representative from the respondent was informed prior to the hearing that they would not be required to attend.
[7] 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.
[8] I note that s.587(1) does not limit the circumstances in which Fair Work Australia may dismiss an application.
[9] In all the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
COMMISSIONER
Appearances:
No appearance for the applicant.
The respondent was not required to attend.
Hearing details:
2012.
Canberra:
July 4.
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