Mr Phil McKelson v The Arnhem Club Incorporated

[2012] FWA 10619

[2012] FWA 10619

FAIR WORK AUSTRALIA

DECISION

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

Mr Phil McKelson
v
The Arnhem Club Incorporated
(U2011/643)

DEPUTY PRESIDENT SMITH MELBOURNE, 19 DECEMBER 2012

Application dismissed.

[1] This is a matter which has considerable history and has received the attention of a number of members of this Tribunal.

[2] It involved a termination of employment and then the reinstatement of Mr Phillip McKelson.

[3] An application was lodged for relief in respect of the termination of employment. Sadly, before the matter could be heard, Mr McKelson passed away. Ms Tracy Barton continued to press for the matter to be considered so that there was no cloud over Mr McKelson’s professional life.

[4] On 16 May 2012 the following letter was presented to Ms Barton:

“Dear Ms Barton,

U2011/643 Phillip McKelson v. Arnhem Club Inc.

Firstly may I offer you my condolences in relation to the passing of Mr McKelson. Your email to the Associate to Vice President Lawler has been passed on to me. The Vice President is currently on leave and the file has been allocated to me.

From my reading of the file the Committee that terminated the employment of Mr McKelson was replaced by another Committee which installed Mr McKelson as the caretaker General Manager. It appears that he remained on sick leave until his passing. In your email you have sought to clear his name arising from the first committee’s discussion. May I make three observations?

Firstly, it would be a very difficult and no doubt a traumatic exercise for any proceedings to be conducted where Mr McKelson was not able to present his version of events.

Secondly, I note your statement that in over 35 years of Mr Mckelson’s professional life has he ever had his honestly questioned. Given that he was reinstated as the caretaker General Manager and as there is nothing else on the file, your view of Mr McKelson has not been demonstrated to Fair Work Australia to be untrue.

The final observation is that there may be jurisdictional impediments to the matter progressing. In all the circumstances I would propose to close the file, but again my condolences.

Yours sincerely,”

[5] Ms Barton replied wishing to continue with the matter and arrangements were made to have the matter considered further and a telephone conference was scheduled for 8 November. Regrettably Ms Barton could not be contacted at that time and a message was left for her to contact my Associate. No further contact was made by Ms Barton.

[6] In the circumstances I simply reiterate what was communicated to Ms Barton in May, namely:

“Given that he was reinstated as the caretaker General Manager and as there is nothing else on the file, your view of Mr McKelson has not been demonstrated to Fair Work Australia to be untrue.”

[7] To enable the matter to reach a conclusion I now formally dismiss the matter without consideration of the merits or the jurisdiction upon which the matter may have proceeded.

DEPUTY PRESIDENT

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