Mr Matheson Croyston v Outback Constructors of Australia Pty Ltd Summary

[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.

Printed by authority of the Commonwealth Government Printer

Mr Croyston sought to address contraventions associated with his dismissal by filing an application under section 527 of the Fair Work Act 2009. The respondent, Outback Constructors of Australia Pty Ltd, opposed the application on the grounds that Mr Croyston had not followed the required procedural steps before bringing his claim. The case was heard in the Fair Work Commission, a body established under the Fair Work Act to manage employment-related disputes.

The central legal issues before the Commission were whether Mr Croyston had complied with the procedural prerequisites outlined in section 527 of the Fair Work Act and if he had, whether the Commission had the jurisdiction to address the alleged contraventions. The Fair Work Act mandates that before an application can be made, the applicant must first engage in a dispute resolution process, such as conciliation through the Commission. Additionally, the Commission had to determine whether it had the authority to entertain the application given the procedural missteps.

In delivering the decision, the Commission emphasised the necessity of adhering to the procedural requirements stipulated in the Fair Work Act. The Commission held that Mr Croyston had not complied with the mandatory dispute resolution processes before filing his application. Consequently, the Commission ruled that it did not have jurisdiction to deal with the contraventions Mr Croyston sought to address. The Commission's decision underscored the importance of following prescribed procedures in employment disputes to ensure the legitimacy and fairness of the claims presented.

Mr Matheson Croyston v Outback Constructors of Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established