Mr Robert Beckett v Groote Eylandt Aboriginal Trust T/A G.E.A.T
[2012] FWA 5693
•5 JULY 2012
[2012] FWA 5693 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Robert Beckett
v
Groote Eylandt Aboriginal Trust T/A G.E.A.T.
(U2012/5598)
COMMISSIONER SIMPSON | BRISBANE, 5 JULY 2012 |
Application for unfair dismissal remedy - FWA may dismissal 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 at Darwin on 2 March 2012. The application was made by Mr Robert Bekett, (the applicant) and the respondent employer is Groote Eylandt Aboriginal Trust T/A G.E.A.T, (the employer).
[2] A conciliation conference was convened by Fair Work Australia on 21 March 2012 but was unsuccessful in settling the matter.
[3] The application was then referred to my Chambers for final Arbitration.
[4] A Directions Hearing was held on 21 May 2012. At this Hearing the Respondent raised a jurisdictional object to the application alleging that Mr Beckett was not a person protected from unfair dismissal as he had not completed the minimum employment period as that term is defined in the Act.
[5] Consequently directions were issued and the matter further listed to determine the jurisdictional objection on 19 June 2012. I note that the Directions also advised the parties that “[S]hould the Applicant make no submission in respect of these Directions, the application may be dismissed”.
[6] The Applicant did not comply with directions and failed to attend the Hearing of 19 June 2012.
[7] My Chambers have made numerous attempts to contact the Applicant to discuss his intentions regarding the prosecution of this matter. Attempts to contact the Applicant were made by telephone on 12, 13, 14, 18, 19, 25 and 27 June 2012. To date no correspondence has been received from the Applicant.
Consideration
[8] The Applicant has filed an application for an unfair dismissal remedy and was, until 21 May 2012, prosecuting the matter. However since the Hearing of 21 May the Applicant has failed to comply with Directions, present his case in the Hearing of 19 June and advise the Tribunal of any reason for his non-compliance or failure to attend. In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.
[9] The Full Bench of Fair Work Australia in Sayer v Melsteel Pty Ltd 1considered 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.
[10] I adopt the approach of the Full Bench in Sayer in this matter.
[11] 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.
[12] 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. 2
[13] Accordingly the matter is dismissed. An Order will issue accordingly.
COMMISSIONER
1 [2011] FWAFB 7498 at [19].
2 S.587(3)(a).
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