Miss Cassandra Vit v Club Dakota

[2011] FWA 9250

[2011] FWA 9250

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Cassandra Vit
v
Club Dakota
(U2011/12337)

COMMISSIONER ROE MELBOURNE, 22 DECEMBER 2011

Termination of employment – non-attendance of applicant - application dismissed.

[1] The matter arises from an application filed on 5 October 2011 under s 394 of the Fair Work Act 2009 (the Act) by Ms Cassandra Vit (the Applicant) for relief in respect to the termination of his employment from Merraton Pty Ltd T/A Club Dakota (the Respondent). The Application was received by fax and a hard copy was also received on 7 October 2011. The Applicant referred to the Respondent as Club Dakota but the Respondent acknowledged that the correct reference is to Merraton Pty Ltd T/A Club Dakota.

[2] The Applicant says that she was dismissed on 20 September 2011. The Respondent says that the Applicant was dismissed on 4 September. An examination of the material submitted by the Respondent suggests that the Applicant was not aware that her employment had been terminated at the time suggested by the Respondent. In the absence of hearing the evidence I cannot make a finding in respect of this matter however on the material before me it is likely that the termination was on 20 September 2011. The Application was made at least 15 days after the dismissal took effect. The Application was out of time and hence the Applicant must establish exceptional circumstances exist to justify an extension of time pursuant to Section 394 of the Act. The Application was at least one day late.

[3] Neither the Applicant nor the Respondent attended the proceedings on 15 December 2011. My Associate contacted the Applicant and confirmed her email and phone details and that she was able to communicate by these means. My Associate then wrote to the Applicant by email on 15 December 2011 asking her to respond by 20 December 2011 if there is any reason why the matter should not now be dismissed. No response was received by 20 December 2011.

[4] The Applicant has not produced any evidence or submission to explain the reason for the delay in her Application. The Applicant has not established that there are any exceptional circumstances which could justify an extension of time for submitting the Application.

[5] The Applicant has failed to prosecute her Application despite adequate opportunity to do so.

[6] In all of the circumstances I consider it appropriate to dismiss the Application for want of prosecution in accordance with Section 587(1) of the Act. An order to this effect will be issued.

COMMISSIONER

Appearances:

No appearance for the Applicant or the Respondent.

Hearing details:

2011
Melbourne
December 15

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<Price code A, PR518476>