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

[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

Printed by authority of the Commonwealth Government Printer

In the case of Mr Seru Semi v Purcell's Lineboring and Engineering Pty Ltd, the Fair Work Commission was asked to consider Mr Semi's application for relief from an unfair dismissal. The respondent, Purcell's Lineboring and Engineering Pty Ltd, had dismissed Mr Semi on the grounds of misconduct and unsatisfactory performance. The dispute arose from the termination of Mr Semi's employment, which he contested on the basis that it was unfair.

The central legal issue before the Commission was whether the dismissal was justified under the Fair Work Act. Specifically, the Commission had to determine whether the respondent had a valid reason related to Mr Semi's capability or conduct to terminate his employment, and whether the dismissal was procedurally fair. The Commission also considered whether the respondent had taken reasonable steps to remedy the underlying issues prior to dismissal.

The Fair Work Commission found that the respondent had valid reasons to dismiss Mr Semi, as there was evidence of ongoing misconduct and performance issues. The Commission was satisfied that the respondent had followed a fair process in terminating Mr Semi's employment. Furthermore, the Commission noted that the respondent had attempted to address the issues through performance management and warnings, which were not effective. Consequently, the Commission dismissed Mr Semi's application for relief from the dismissal, finding that it was both substantively and procedurally fair.

There were no further orders made by the Commission beyond the dismissal of Mr Semi's application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established