Mr Mata Euta v Procast Australia (Resource Logistics Pty Ltd)

[2009] FWA 630

[2009] FWA 630

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment

Mr Mata Euta
v
Procast Australia (Resource Logistics Pty Ltd)
(U2009/10402)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 OCTOBER 2009

Termination of employment – dismissal of application pursuant to s. 657 for failure to attend.

[1] On 7 July 2009 Mr Mata Euta (“the Applicant”) filed an application pursuant to s.643(1)(a) and s.661 of the Workplace Relations Act 1996 (“the Act”) alleging that the termination of his employment by Stramit Corporation Pty Ltd Procast Australia (Resource Logistics Pty Ltd) (“the Respondent”) was harsh, unjust or unreasonable.

[2] The Respondent filed a notice of motion to dismiss the Applicant’s application on the basis that the Applicant’s claim was frivolous, vexatious or lacking in substance. The Respondent did not object to attending a conciliation conference.

[3] On 13 August 2009 the matter was listed for a conciliation conference to occur on 22 September 2009. A Notice of Listing was sent to the Applicant via email and express post (to the postal address and email addresses cited in the application and not otherwise amended).

[4] The Applicant did not attend the conciliation conference scheduled for 11:30am on 22 September 2009. Two representatives of the Respondent attended Fair Work Australia to participate in the conciliation conference. My Associate telephoned the Applicant’s home phone number and was advised the Applicant was unavailable as he was at work.

[5] Because the Applicant failed to attend the hearing, I sent the following correspondence (to the postal address and email address cited in the application and not otherwise amended) to the Applicant on 23 September 2009:

“Dear Mr Euta

U2009/10402 - Euta, Mata v Procast Australia (Resource Logistics Pty Ltd)

On 7 July 2009 you made application under s.643 of the Workplace Relations Act 1996 for relief in relation to the termination of your employment with Procast Australia (Resource Logistics Pty Ltd).

A conciliation conference in respect of your application was listed for 22 September 2009 before Senior Deputy President Richards. This was advised to you by way of a listing posted to you (by express post) and emailed to you on 13 August 2009. The postal and email addresses for this purpose were the above addresses (as provided on your application).

You did not attend the conference as listed for 22 September 2009, although representatives from your former employer attended.

My Associate attempted to contact you by calling the mobile telephone (that you provided to Fair Work Australia on your application) which was not answered. My Associate also telephoned the ‘land line’ telephone number also provided in your application and was told by an individual who answered my Associate’s telephone call that you were at work and unavailable.

In view of the above, I bring to your attention s.657 of the Workplace Relations Act 1996:

"657 Commission may dismiss application if applicant fails to attend

If an applicant in a proceeding relating to an application under section 643 fails to attend the proceeding, the Commission, after giving the applicant reasonable notice and a reasonable opportunity to be heard, may dismiss the application under section 643."

Given the terms of this provision, I now ask you to provide me with reasons why you were unable to attend the second conciliation conference on 7 October 2009, along with any further information you wish to put to me about your application that might be relevant. Similarly, can you please provide the reasons and any other information relevant to why you did not attend the first conciliation conference held on 22 September 2009.

I would ask you to provide this information in writing no later than close of business on 7 October 2009. Please contact my Associate, Caroline O’Connor on [phone] or [email protected], if you have any queries.

Of course, if I do not receive any response from you in this matter, barring any other developments in the interim, I may dismiss your application in accordance with section 657 of the Workplace Relations Act 1996.

Yours faithfully

Senior Deputy President Richards”

[6] As at today’s date, I have received no response from the Applicant to the above correspondence.

[7] I must therefore conclude, pursuant to s.657 of the Act, that I have given the Applicant reasonable notice and a reasonable opportunity to be heard in relation to failure to attend the proceeding by hearing in relation to the motion to dismiss.

[8] Consequently, again pursuant to s.657 of the Act, I dismiss the application. An order to this effect will issue simultaneously with this decision.

SENIOR DEPUTY PRESIDENT

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