Mr Matheson Croyston v Outback Constructors of Australia Pty Ltd

[2013] FWC 1737

[2013] FWC 1737

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Matheson Croyston
v
Outback Constructors of Australia Pty Ltd
(C2012/6358)

COMMISSIONER CLOGHAN PERTH, 20 MARCH 2013

Application to deal with contraventions involving dismissal.

[1] On 27 December 2012, Mr Matheson Croyston (“Applicant”) made application to Fair Work Australia, now the Fair Work Commission (“Commission”), to deal with a general protections dispute in which he alleged that he was dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (“FW Act”).

[2] The application was made pursuant to s.365 of the FW Act.

[3] Mr Croyston alleged that he was dismissed by Outback Constructors of Australia Pty Ltd (“Employer”).

[4] Mr Croyston states in his application that he was dismissed by the Employer on 5 November 2012.

[5] At a conference on 18 January 2013, the Employer asserted that:

• the Applicant was not an employee of the Employer and consequently had not been dismissed in accordance with a purported contract of employment; and



• for the Commission to have jurisdiction to deal with the application, it is necessary, pursuant to s.365 of the FW Act, that the Applicant has been dismissed; and



• notwithstanding its jurisdictional assertions, it denied that it had breached the General Protections provision of the FW Act.

[6] Mr Croyston rejected the assertions of the Employer.

[7] To progress the application, the issue to be determined by the Commission was:

“whether Mr Croyston was as employee of Outback Constructors of Australia Pty Ltd on 5 November 2012”.

[8] On 22 January 2013, the Commission issued procedural directions for a hearing on 19 March 2013. The procedural directions were to assist in the determination of whether Mr Croyston was an employee of the Employer on 5 November 2012.

[9] Compliance with the procedural directions was not without its difficulties.

[10] At the hearing on 19 March 2013, the Applicant did not attend or communicate with the Commission as to why he was unable to attend the hearing. My Associate attempted to contact the Applicant by mobile telephone on two occasions.

[11] The Employer was represented by Mr Moss, Manager, Employee Relations Consulting, Chamber of Commerce and Industry of Western Australia (Inc). Mr Moss and the Employer’s witnesses were ready and able to proceed with the hearing.

[12] In the circumstances, I adjourned the application to enable the Applicant to communicate with the Commission prior to 4:000 pm on 19 March 2013. No communication was received from the Applicant.

[13] Having considered the circumstances outlined above, I have reached the conclusion that the application must be, pursuant to subsection 587(3) of the FW Act, dismissed for want of prosecution. An order to this effect will be issued conjointly with this decision and reasons for decision.

COMMISSIONER

Appearances:

No appearance or representation by or on behalf of the Applicant.

P Moss, Chamber of Commerce and Industry of Western Australia (Inc) for the Respondent.

Hearing details:

2013:

Perth,

19 March.

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