Mr David Matthews v Groote Eylandt Aboriginal Trust T/A G.E.A.T

[2011] FWA 5699

[2011] FWA 5699

FAIR WORK AUSTRALIA

DECISION

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

Mr David Matthews
v
Groote Eylandt Aboriginal Trust T/A G.E.A.T.
(U2011/7901)

COMMISSIONER DEEGAN CANBERRA, 25 AUGUST 2011

Application for unfair dismissal remedy - non-compliance with directions and non-attendance at conference and hearing - application dismissed

[1] On 17 May 2011 Mr David Matthews (the Applicant) filed an application for unfair dismissal remedy relating to the termination of his employment by Groote Eylandt Aboriginal Trust (the Respondent) on 9 May 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 21 June 2011.

[3] The matter was listed for a telephone conciliation conference on 22 June 2011. At the teleconference Mr Bruce Taylor, a solicitor, appeared on behalf of the Respondent. The Applicant was unable to be contacted. Accordingly, the conciliation was unable to take place.

[4] On 7 July 2011 the file was allocated for arbitration. On the same day Directions were issued to the parties setting out deadlines for the filing of submissions and statements for the arbitration. The matter was set down for arbitration in Darwin on 17 August 2011.

[5] The Applicant failed to comply with the Directions to file and serve submissions and/or statements by close of business on 25 July 2011. On 2 August 2011 the respondent’s representative contacted Fair Work Australia requesting that, in light of the Applicant’s failure to attend the conciliation conference and to file documents on time, the 17 August listing be vacated and the application be dismissed. Several unsuccessful attempts were made to contact the Applicant.

[6] On 3 August 2011 the matter was listed for a hearing to deal with the applicant’s failure to comply with the Directions. A number of attempts to reach the applicant were made. On 7 August, the day before the hearing, contact was able to be made with the applicant by mobile phone. The Applicant was informed of the importance of being available to take part in the non-compliance hearing and warned of the consequences of any failure to do so. The Applicant was asked for a current mailing address and advised that, for the purposes of the hearing he would be contacted on the telephone at 10a.m. the next morning. The hearing proceeded on 8 August 2011. Mr Taylor appeared for the Respondent but the Applicant was again unable to be contacted.

[7] During the hearing on 8 August I indicated to the Respondent’s representative that it was my intention to give the Applicant a final opportunity to explain his failure to be available for the hearing or to pursue his application in accordance with the Directions. On 8 August 2011 a letter was dispatched to the Applicant via email and registered post informing him that if he did not, by close of business on 22 August 2011, provide reasons, explaining his failure to file materials in accordance with the Directions, the application would be dismissed.

[8] The letter was sent to the mailing address given to FWA by the applicant on 7 August 2011. On 15 August 2011 the envelope was returned marked ‘return to sender’. Further unsuccessful attempts have also been made to contact the Applicant by telephone. I consider that any further attempt to contact the Applicant would be a waste of time and resources. In correspondence to FWA on 2 August 2011 the Respondent noted its concerns that the Applicant was not serious about pursuing the matter. It appears that this is the case.

Relevant statutory provisions

[9] 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.

[10] 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 17 May 2011 the applicant has;

• failed to take part in the telephone conciliation conference on 22 June 2011;



• failed to file materials in support of his application by 25 July 2011 in accordance with Directions;



• failed to appear at the Hearing on 8 August 2011 to explain his failure to comply with Directions;



• failed to respond within 14 days to the letter dated 8 August 2011 seeking reasons for his non-compliance with Directions; and



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

[11] Pursuant to s.587(3)(b) of the Act, the Applicant’s s.394 application for unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

No appearance by or for the Applicant.

Mr Bruce Taylor, Special Counsel Minter Ellison, for the Respondent.

Hearing details:

2011.

Canberra:

August, 8.

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