Mr Seru Semi v Purcell's Lineboring and Engineering Pty Ltd

[2014] FWC 1073

[2014] FWC 1073

FAIR WORK COMMISSION

DECISION

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

Mr Seru Semi
v
Purcell's Lineboring and Engineering Pty Ltd
(U2013/10934)

COMMISSIONER SIMPSON BRISBANE, 13 FEBRUARY 2014

Application for relief from unfair dismissal - application dismissed.

[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 in Brisbane on 28 June 2013. The application was made by Mr Semi (the applicant) and the respondent employer is Purcell's Lineboring and Engineering Pty Ltd, (the employer).

[2] A conciliation conference was convened by Fair Work Commission on 3 September 2013 but was unsuccessful in settling the matter.

[3] The application was then referred to my Chambers for final Arbitration.

[4] A Directions Hearing was listed for 4 November 2013. Directions were set out for the matter to be heard in Gladstone 23 and 24 January 2014.

[5] On 2 December 2013, the date by which the directions required that the applicant file any statements or submissions in support of his application, an email was received from the Applicant. In short the email indicated the applicant was having difficulty in preparing for the scheduled hearing due to personal circumstances involving with his having returned to his own country Fiji. Upon receipt of this email the parties were asked to participate in a further conference.

[6] The matter was listed for a telephone conference with Commissioner Booth 23 January 2014. The Applicant did not make an appearance for the scheduled conference and it was cancelled as a result. Correspondence was sent to the Applicant from Commissioner Booth’s chambers requesting he respond by 5pm 6 February 2014. To date there has been no response. I note that the correspondence also advised the parties that “Should the Applicant make no submission in respect of these Directions, the application may be dismissed”.

[7] To date no response of any form has been received from the Applicant. The notifications from the Tribunal have all been directed to the email address provided by the Applicant on his application, which is the same email address that the Applicant has used in the course of this matter and had previously acknowledged and responded to email correspondence from the Tribunal.

Consideration

[8] 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 Commission in Sayer v Melsteel  1Pty Ltd considered 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 Commission 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.

[13] Accordingly the matter is dismissed. An Order will issue accordingly.

COMMISSIONER

 1   Sayer v Melsteel[2011] FWAFB 7498

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