Ms Lian Kille v Swets Information Services P/L

[2010] FWA 5883

[2010] FWA 5883

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

Ms Lian Kille
v
Swets Information Services P/L
(C2009/10642)

COMMISSIONER LEWIN MELBOURNE, 3 AUGUST 2010

[1] This decision concerns an application by Ms Lian Kille to Fair Work Australia to deal with the alleged unlawful termination of her employment with Swets Information Services P/L (Swets) pursuant to s.733 of the Fair Work Act 2009 (the Act). The application was filed in Fair Work Australia on 28 September 2009.

[2] Ms Kille commenced employment with Swets on 29 September 2008. On 8 June 2009 Ms Kille’s permanent employment engagement was terminated and Ms Kille was engaged as a casual employee. On 11 October 2009 Ms Kille’s casual employment relationship with Swets was terminated. Ms Kille alleged in her Form 9—Application for Fair Work Australia to Deal with an Unlawful Termination Dispute, that she was terminated because she did not meet sales targets or bring in new clients, that Swets was dissatisfied with her communication in the workplace and that the separation certificate that she was provided with by Swets stated that there was a ‘shortage of work’.

[3] Ms Kille alleges that her termination was unlawful and that her dismissal contravened s.772(1) of the Act for the following reasons: Ms Kille suffers from aspergers syndrome, a disability for the purpose of s.772(1) of the Act; Swets knew, or ought to have known, of the disability; and Ms Kille denies the reasons given by the respondent for the dismissal and alleges that the respondent was not prepared to accommodate the disability and dismissed her because of the disability or for reasons that included the disability.

[4] On 7 October 2009 the application was listed for conciliation on 27 October 2009. The matter was adjourned on a number of occasions due to conflicting availability of the Applicant’s representative and the Tribunal. The conciliation was ultimately relisted on 26 November 2009.

[5] At the conciliation conference on 26 November 2009 Mr Alastair Maule of AED Legal Centre appeared for Ms Kille. Mr Mark Ritchie of VECCI appeared on behalf of Swets with Ms Pru Ottey of the Company.

[6] The application did not settle during the conciliation conference on 26 November 2009 because Ms Kille was unable to inform the Tribunal of the precise nature of Swets’ conduct which gave rise to the making of the application or of what remedy she sought in making the application. However, parties indicated a willingness to participate in the conciliation process. It was agreed during the conciliation that Ms Kille and her representative would compile a summary of the particular circumstances which gave rise to the alleged unlawful termination of Ms Kille’s employment and the remedy sought in a document which would be provided to Swets and Fair Work Australia. It was agreed between the parties that the matter would be relisted for a second conciliation conference upon receipt of the abovementioned summary.

[7] At the conciliation conference, Swets foreshadowed that the company intended to file a jurisdictional objection in the Tribunal prior to the once the company was notified of the nature of Ms Kille’s claim.

[8] The abovementioned summary was never compiled by or on behalf of Ms Kille. During the months of January 2010 to April 2010 my Associate made a number of telephone calls to AED Legal Centre to ascertain the status of the matter. My Associate was informed in early April that AED had made several attempts to contact Ms Kille in order to prepare the abovementioned summary to no avail. On 9 April 2010, AED Legal Centre filed a form 53—Notice of Representative Ceasing to Act, in this matter.

[9] On 5 July 2010 my Associate wrote to Ms Kille at her last known address to ascertain the status of the matter. My Associate request that Ms Kille inform the Tribunal of the status of the matter and, in particular, whether she required the Tribunal do anything more in relation to the application. In the same letter, Ms Kille was provided with a notice of discontinuance which she invited to file in the Tribunal in the event that she no longer wished to proceed with the application. Ms Kille was invited to respond to that letter by 17 July 2010.

[10] Ms Kille did not respond to that letter. On 21 July 2010, the application was listed for conference at 4.30 pm on 30 July 2010. The notification for the conference was sent to Ms Kille’s last known address. Swets was excused from appearing at the conference.

[11] Ms Kille did not appear at the conference on 30 July 2010. Attempts were made to contact Ms Kille by telephone using the telephone number provided in the application to no avail.

[12] Fair Work Australia may dismiss an application pursuant to s.587 of the Act which is set out below:

“587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[13] Fair Work Australia has made all reasonable attempts to provide Ms Kille with the opportunity to prosecute the application that she filed. It appears that Ms Kille is no longer prosecuting the application. Ms Kille has been afforded adequate and fair opportunities to have the application dealt with and has failed to avail herself of those opportunities. The Tribunal hereby exercises its power to dismiss the application upon its own initiative pursuant to s.587(3)(a) of the Act. An order will issue accordingly.

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