Ms Margaret Padmore v Gateway Bunbury Pty Ltd T/A Shell Gateway Bunbury

[2012] FWA 10558

[2012] FWA 10558

FAIR WORK AUSTRALIA

DECISION

AND

REASONS FOR DECISION

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

Ms Margaret Padmore
v
Gateway Bunbury Pty Ltd T/A Shell Gateway Bunbury
(U2012/3413)

COMMISSIONER CLOGHAN PERTH, 14 DECEMBER 2012

Unfair dismissal.

[1] On 13 September 2012, Ms Margaret Padmore (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from Gateway Bunbury Pty Ltd T/A Shell Gateway Bunbury (“the Employer”).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).

[3] The application was unable to be resolved at conciliation and was referred to me for arbitration on 18 October 2012.

[4] On 23 October 2012, I issued procedural directions for a hearing on 9 January 2013.

[5] The Applicant failed to comply with procedural directions due on 7 November and 21 November 2012. The Employer complied with the procedural directions due on 7 November 2012.

[6] On 22 November 2012, I wrote to the Applicant seeking why she had not complied with the procedural directions and enquired whether she intended to proceed with her application. I sought a response by 26 November 2012. I received no reply or “return to sender”.

[7] On 29 November 2012, my Associate emailed Ms Padmore. The relevant parts are as follows:

“In the absence of any response, the Commissioner intends to hold a hearing to determine why the application should not be dismissed for non-compliance of directions and want of prosecution. You will shortly receive separately a Notice of Listing with the time and date of the hearing.

I need to advise that should you not attend the hearing, the Commissioner will proceed to, in accordance with s.600 of the Fair Work Act 2009, determine the matter. Unless you attend and provide an acceptable explanation for your inaction, the Commissioner advises that he intends to dismiss the application on his own initiative.”

[8] On 30 November 2012, the Applicant was, through email and ordinary post, advised of a hearing on 12 December 2012.

[9] At the hearing on 12 December 2012, Ms Padmore did not attend or provide an explanation why she was unable to attend. The Employer was represented by Mr R Gifford, Motor Trades Association.

[10] In view of Ms Padmore not complying with the procedural directions, not replying to my written communication or my Associate’s email, and not attending the hearing on 12 December 2012, the Employer requested that the application be dismissed for want of prosecution.

[11] Having considered all the circumstances set out above, I reached the conclusion on 12 December 2012 that the application must be dismissed for want of prosecution. Accordingly, an Order will be issued jointly with this written Decision and Reasons for Decision.

COMMISSIONER

Appearances:

No appearance or representation by or on behalf of the Applicant.

R Gifford for the Respondent.

Hearing details:

2012:

Perth,

12 December.

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