Mr Craig Butcher v ESR Group Holdings Pty Ltd

[2011] FWA 6471

[2011] FWA 6471

FAIR WORK AUSTRALIA

DECISION

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

Mr Craig Butcher
v
ESR Group Holdings Pty Ltd
(U2011/8928)

COMMISSIONER DEEGAN CANBERRA, 22 SEPTEMBER 2011

Termination of employment - unfair dismissal application - non-compliance with directions - application dismissed for failure to pursue application.

[1] On 16 June 2011 Mr Craig Butcher (the Applicant) filed an application for unfair dismissal remedy relating to the termination of his employment by ESR Group Holdings Pty Ltd (the Respondent) on 2 June 2011. The application was made under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent filed a response to the application on 11 July 2011.

[3] The matter was the subject of a telephone conciliation conference on 18 July 2011. At the teleconference Mr Amnon Kelemen appeared on behalf of the Applicant. The Respondent was represented by one of its regional managers Mr James Sherwin. The matter was unable to be resolved at conciliation.

[4] The matter was subsequently allocated to my chambers and directions were issued on 29 July 2011. The matter was set down for arbitration on 21 September 2011.

[5] The Applicant failed to comply with the directions to file and serve his materials by close of business on 19 August 2011. On or about 1 September 2011 the respondent contacted Fair Work Australia requesting advice on the progress of the matter. The applicant’s representative was asked to contact chambers to explain his client’s failure to comply with directions. No response was forthcoming.

[6] Accordingly, the matter was listed for a non-compliance hearing by videoconference on Monday, 5 September 2011. On Friday, 2 September 2011 Mr Kelemen filed a notice of representative ceasing to act. Attempts were made to contact the applicant to ascertain whether he had retained alternative representation but none were successful. The 21 September 2011 listing was cancelled as a result.

[7] A letter was sent to the applicant (by post and via email) requesting him to advise chambers by 5 pm Monday, 19 September 2011 if he wished to continue with his application. No response was received and the applicant has not otherwise contacted Fair Work Australia.

Relevant statutory provisions

[8] Fair Work Australia’s ability to dismiss applications is governed by sections 577 and 587 of the Act. Relevantly these provisions provide as follows:

577 Performance of functions etc. by FWA

FWA must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that FWA performs its functions and exercises its powers efficiently etc. (see section 581).

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) ...

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.

[9] In all the circumstances, I am satisfied that the application should be dismissed given the failure of the applicant to make any attempt to pursue the matter. Since the lodgement of his application on 16 June 2011 the applicant has:

• failed to file materials in support of his application in accordance with directions;



• failed to appear at the non-compliance hearing on 5 September 2011 to explain his failure to comply with directions;



• failed to notify Fair Work Australia whether he has obtained other legal representation (let alone instruct that representative to re-agitate the application);



• failed to respond to the letter dated 6 September 2011 seeking clarification about whether he intended to pursue the application; and



• failed to otherwise contact Fair Work Australia to enquire about the progress of his application.

[10] Pursuant to s.587(3)(b) of the Act, I intend to dismiss the applicant’s s.394 application for unfair dismissal remedy. An order (PR514821) to this effect is issued separately.

COMMISSIONER

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<Price code A, PR514820>