Mr Mark Bailey v National Heavy Haulage Pty Ltd

[2013] FWC 3867

[2013] FWC 3867

FAIR WORK COMMISSION

DECISION

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

Mr Mark Bailey
v
National Heavy Haulage Pty Ltd
(U2013/7854)

COMMISSIONER SIMPSON BRISBANE, 27 JUNE 2013

Application for unfair dismissal remedy - FWA may dismiss an application on its own motion - want of prosecution.

[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 26 March 2013. The application was made by Mr Mark Bailer (the applicant) and the respondent employer is National Heavy Haulage Pty Ltd, (the employer).

[2] A conciliation conference was convened by Fair Work Commission on 23 April 2013 but was unsuccessful in settling the matter.

[3] The application was then referred to my Chambers for final Arbitration.

[4] A Directions Hearing was listed for Monday 4 June 2013. The Applicant did not make an appearance for the scheduled hearing and it was cancelled as a result. Attempts have been made to contact the Applicant prior to and after the scheduled hearing. These attempts were made using the Applicant’s telephone number provided on the application and the telephone number in the white pages. These attempts were unsuccessful.

[5] Correspondence was sent to the Applicant for written submissions to be filed by 20 June 2013 addressing why this application should not be dismissed. I note that the correspondence also advised the parties that “Should the Applicant make no submission in respect of these Directions, the application may be dismissed”. The correspondence was sent to the address on his application and also the email address provided by the Transport Workers’ Union who was previously representing the Applicant.

[6] To date no response of any form has been received from the Applicant.

Consideration

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

[8] The Full Bench of Fair Work Australia in Sayer v Melsteel Pty Ltd considered 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 Australia 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.

[9] I adopt the approach of the Full Bench in Sayer in this matter.

[10] 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.

[11] It is noted for completeness that no application has been made by the Respondent in this matter for the application to be dismissed. I rely on the power of the Tribunal to dismiss an application of its own motion.

[12] Accordingly the matter is dismissed. An Order will issue accordingly.

COMMISSIONER

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