Ms Kimberley Johnstone v Novacare Incorporated

[2013] FWC 625

[2013] FWC 625

FAIR WORK COMMISSION

DECISION

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

Ms Kimberley Johnstone
v
Novacare Incorporated
(U2012/14092)

COMMISSIONER STANTON NEWCASTLE, 25 JANUARY 2013

Termination of employment - discontinuance by applicant.

[1] This decision concerns the application for relief from unfair dismissal made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Ms Kimberley Johnstone (the applicant) following her dismissal from Novacare Incorporated.

[2] The matter was set down for jurisdiction hearing on 22 January 2013 at which the applicant was represented by Mr A Cardillo, solicitor.

[3] At the outset, Mr Cardillo stated he had been retained by the applicant to advise her “in relation to these proceedings and to use my best endeavours to settle the matter”.

[4] Mr Cardillo informed the Commission the applicant was recovering from recent surgery and was unable to be present for the proceedings. Mr Cardillo explained the applicant had limited funds and proposed to withdraw her application. The following exchange subsequently occurred:

THE COMMISSIONER: So do you propose to withdraw now or are they your instructions?

MR CARDILLO: Yes I propose to withdraw.  1

[5] Rule 4 of the Fair Work Australia Rules provides that the Commission may dispense with the requirement for an applicant to file a Notice of Discontinuance under s.588 of the Act. Accordingly, I accept Mr Cardillo’s instruction on behalf of the applicant and compliance with the requirement of s.588 is waived.

[6] Application U2012/14092 is discontinued.

COMMISSIONER

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