Milco Mackoski v National Cleaning Services
[2012] FWA 6523
•31 JULY 2012
[2012] FWA 6523 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Milco Mackoski
v
National Cleaning Services
(U2012/6745)
COMMISSIONER DEEGAN | HOBART, 31 JULY 2012 |
Unfair dismissal - non-compliance with Directions - application dismissed.
[1] On 3 April 2012 Mr Milco Mackoski (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 National Cleaning Services Australia Pty Ltd (the respondent).
[2] The matter was listed for a conciliation conference which took place on 23 April 2012. This conference was unsuccessful. The applicant sent an email on 1 May requesting that the matter be referred to arbitration. In this email he indicated he would be providing a supplementary statement to address claims raised in the respondent’s response.
[3] Directions were issued by my Chambers on 8 May 2012, requiring the applicant to file an outline of submissions and witness statements by 5 June 2012 in preparation for the arbitration hearing which was listed for 19 July.
[4] On the same day that the Directions were issued, a document titled ‘Supplementary Statement by Milco Mackoski’ was received by the conciliator whom had initially conciliated the matter. My Chambers wrote to Mr Mackoski on 10 May indicating that this material was not taken to be his submissions and witness statements for the purposes of compliance with the Directions.
[5] When the applicant failed to file the requisite documentation pursuant to the Directions on 5 June, my Chambers sent an email to him the following day requesting that he file his outline of submissions and witness statements immediately. Nothing further was received by Fair Work Australia until 15 June, when an email was sent to my Chambers regarding wages issues. In the final sentence of this email the applicant stated:
‘My wife and I we have reached a point where we believe that getting any justice would be impossible for us. However, our wish is the email and the attachments above be added to our file as the last documents from us in this case.’
[6] Subsequent attempts to contact the applicant regarding his non compliance with Directions have been unsuccessful.
[7] As the applicant had not complied with the Directions, a representative from the respondent was informed prior to the hearing that the respondent would not be required to appear at the hearing.
[8] At the hearing which took place on 19 July, there was no appearance for the applicant.
[9] 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.
[10] I note that s.587(1) does not limit the circumstances in which Fair Work Australia may dismiss an application.
[11] 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.
[12] The application is dismissed.
COMMISSIONER
Appearances:
No appearance for the applicant.
The respondent was not required to attend.
Hearing details:
2012.
Canberra:
July 19.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR527383>
0
0
0