DECISION

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

Ms Natalia Butler
v
The Trustee for M Langley & K Oliver - Langley Family Trust T/A The Pool and Spa Shop
(U2015/9627)

COMMISSIONER WILSON

MELBOURNE, 28 OCTOBER 2015

Application for relief from unfair dismissal - dismissed for want of prosecution.

[1] On 24 July 2015 Ms Natalia Butler made an application for unfair dismissal remedy with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Following an unsuccessful conciliation attempt on 13 August 2015, the matter was referred to me. On 21 August 2015 the matter was listed for a telephone Directions conference to be held on 27 August 2015. Notice of this conference was emailed to both Ms Butler and her representative, Mr Kozijevic of Australian Dismissal Services.

[3] On 26 August 2015 notice was received from Ms Butler’s representative that Australian Dismissal Services had ceased to act for the Applicant.

[4] An adjournment of the Directions conference was then granted at the request of the Respondent on 26 August 2015, adjourning the listing to 3 September 2015. A revised Notice of Listing was emailed to Ms Butler.

[5] At the time of the scheduled conference, unsuccessful attempts were made to contact Ms Butler on the telephone contact details provided in her unfair dismissal application. This, coupled with a lack of any correspondence from Ms Butler pertaining to her unavailability to attend the conference, gave rise to a concern by me that Ms Butler’s application may fail for want of prosecution.

[6] Accordingly, my chambers issued written correspondence to Ms Butler, by email and express post, on 7 September 2015. That correspondence outlined my concerns with the continuation of her application, providing;

“Unless advice is received by the Commission within 14 days, that is by no later than close of business on Monday, 21 September 2015, that you wish to proceed with your application, your application will be dismissed.”

[7] The Applicant has failed to provide any advice as sought by the Commission and no explanation for Ms Butler’s non-attendance at the Directions conference has been afforded by her. Indeed, the Commission has not received any correspondence from Ms Butler since the filing of her unfair dismissal application.

[8] Accordingly, the application is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act. An Order to this effect will be issued in conjunction with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

Ms Natalia Butler brought an application against The Trustee for M Langley & K Oliver - Langley Family Trust T/A the Pool and Spa Shop seeking relief from unfair dismissal. The dispute arose from her employment with the respondent, which she claimed was terminated unfairly. The case was heard by the Fair Work Commission, an Australian tribunal with jurisdiction over employment disputes. The primary legal issue the tribunal had to address was whether Ms Butler's application was dismissed for want of prosecution due to her failure to prosecute her case within the stipulated time limits. The tribunal also needed to determine if there were any grounds for granting relief from dismissal based on the evidence presented.

The tribunal found that Ms Butler had not complied with the procedural requirements for prosecuting her case within the mandated time frames. This non-compliance resulted in the dismissal of her application for want of prosecution. The tribunal considered that Ms Butler had not demonstrated any special circumstances that would justify the relief from dismissal. The tribunal concluded that her failure to adhere to the procedural requirements and the absence of any valid grounds for relief meant that the application had to be dismissed.

Given the tribunal's findings, the application for relief from unfair dismissal was dismissed for want of prosecution. The tribunal did not find it necessary to address the merits of the unfair dismissal claim due to the procedural failure. Consequently, the tribunal's decision stands as a dismissal of Ms Butler's application without consideration of the underlying unfair dismissal claim.

Ms Natalia Butler v The Trustee for M Langley & K Oliver - Langley Family Trust T/A the Pool and Spa Shop

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established