Miss Nadine Wilson v Kidzplay and Learning Centre

[2016] FWC 3547

[2016] FWC 3547

FAIR WORK COMMISSION

DECISION

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

Miss Nadine Wilson
v
Kidzplay and Learning Centre
(U2016/5201)

COMMISSIONER SIMPSON BRISBANE, 9 JUNE 2016

Application for relief from unfair dismissal - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged in Brisbane on 9 March 2016. The application was made by Miss Nadine Wilson (the Applicant) and the respondent employer is Kidzplay and Learning Centre (the Employer).

[2] The application was then referred to my Chambers, and the matter was listed for a Directions Hearing to be held on 23 May 2016 at 11am.

[3] On 23 May 2016 at 10.10am Chambers telephoned the Applicant to confirm whether she was appearing in person or via telephone. The Applicant stated that she was not aware that the Directions hearing was on that day, and she did not remember receiving the Notice of Listing. Chambers confirmed with the Applicant that the email address that the Notice of Listing was sent to was the correct address. The Applicant advised that she was not ready for the Directions hearing, and Chambers advised her that she could send an email to request an adjournment. No further correspondence was received from the Applicant.

[4] At the time of the Directions Hearing, attempts to make contact with the Applicant on her telephone number were made without success. Voice messages were left for the Applicant to contact my Chambers.

[5] Correspondence was sent via both email and post to the Applicant from my Chambers on 23 May 2016 requesting a response by Wednesday, 1 June 2016. To date there has been no response. I note that the correspondence advised the Applicant that “If the Commission fails to hear from you by Wednesday, 1 June 2016 the Commission will infer you wish to discontinue the matter and may dismiss the application on its own initiative pursuant to s.587 of the Act”.

[6] To date no response of any form has been received from the Applicant. The notifications from the Tribunal have all been directed to the email address provided by the Applicant on her application, which is the same email address that the Applicant confirmed was correct.

[7] The correspondence sent via post on 23 May 2016 requesting a response by Wednesday, 1 June 2016 was sent to the address provided on the Application.

Consideration

[8] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[9] The Full Bench of Fair Work Commission in Sayer v Melsteel Pty Ltd  1considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to Fair Work Commission to consider exercising the power of the Tribunal under s.587(1). Sayer further considers that it would not be inconsistent with s587(1) to dismiss the application without examining the merits.

[10] I adopt the approach of the Full Bench in Sayer v Melsteel Pty Ltd in this matter.

[11] The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above.

[12] Accordingly the matter is dismissed.

COMMISSIONER

 1  Sayer v Melsteel[2011] FWAFB 7498

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