Mrs Melissa Hinnrichsen v GMW Petroleum Pty Ltd T/A Shoalhaven Ethanol Fuel Summary

[2013] FWC 2185

FAIR WORK COMMISSION

DECISION

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

Mrs Melissa Hinnrichsen
v
GMW Petroleum Pty Ltd T/A Shoalhaven Ethanol Fuel
(U2012/16120)

COMMISSIONER MACDONALD

SYDNEY, 11 APRIL 2013

Application for unfair dismissal remedy - FWA sought to make contact with Applicant - no response - application dismissed for 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 in Sydney on 28 November 2012. The application was made by Melissa Hinnrichsen (the Applicant) against GMW Petroleum Pty Ltd t/a Shoalhaven Ethanol Fuel (the Respondent/the Employer).

[2] Correspondence of 7 December 2012 from Fair Work Australia (FWA) advised that the matter was listed for conciliation before an FWA Conciliator on 21 December 2012.

[3] The Respondent submitted on 11 December 2012, a Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy.

[4] The Conciliation Conference set down for 21 December 2012 was cancelled and the file was progressed to the status of being programmed in the future for Arbitration.

[5] My office was given carriage of the file and contact with the parties was attempted for the purpose of setting filing dates for witness statements and date(s)/location for the Arbitration (somewhere in the Wollongong region).

[6] Numerous telephone attempts were made by my office to contact the Applicant but to no avail. These attempts at contact were made between 17 January 2013 to 6 March 2013.

[7] Finally, on 6 March 2013, my Chambers issued an email to Mrs Hinnrichsen advising that if no contact was made by her with my Chambers by 11 March, then a formal letter would be sent advising that her unfair dismissal application would be closed for want of prosecution.

[8] No contact was received by 11 March. My office waited until 27 March before then sending, by Express Post - No. 049375809092 - correspondence to the Applicant that if my office did not hear from her by close of business, Monday 8 April, then her unfair dismissal application would be closed for want of prosecution. No contact was received by 8 April.

[9] Section 587 of the Act provides as follows:

587 Dismissing Applications

(3) FWA may dismiss an application:

(a) on its own initiative

(b) on application

[10] The Applicant has been given ample opportunity in which to respond to the requests made to her by the Fair Work Commission but has failed to do so.

[11] In all the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act

[12] The application is dismissed.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Mrs Melissa Hinnrichsen v GMW Petroleum Pty Ltd T/A Shoalhaven Ethanol Fuel, the applicant alleged unfair dismissal and sought remedies under the Fair Work Act 2009 (Cth). The applicant, Mrs Melissa Hinnrichsen, had been employed by GMW Petroleum Pty Ltd, trading as Shoalhaven Ethanol Fuel, and claimed she was unfairly dismissed. The Fair Work Commission (FWC) was the forum for this dispute.

The primary legal issue before the Commission was whether the application should be dismissed for want of prosecution. This issue arose due to the Commission's unsuccessful attempts to contact Mrs Hinnrichsen regarding the application. Despite multiple attempts, including sending a letter to her last known address and contacting her via email, there was no response from the applicant. The Commission was required to determine if the lack of response justified dismissing the application for want of prosecution.

In assessing the matter, the Commission considered the procedural steps taken and the lack of engagement from Mrs Hinnrichsen. Given the multiple attempts to contact her and the absence of any communication in response, the Commission concluded that the application was not being actively pursued by the applicant. Consequently, the Commission dismissed the application for want of prosecution. The decision was made based on the applicant's failure to respond to attempts to progress the matter.

The final orders of the Commission were that the application be dismissed for want of prosecution, and no further action would be taken unless the applicant re-lodged the application and provided evidence of active pursuit.

Mrs Melissa Hinnrichsen v GMW Petroleum Pty Ltd T/A Shoalhaven Ethanol Fuel

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established