Ms Sarah Anne Marusic v SWS Evolution Pty Ltd T/A Evolution Lounge Bar

[2010] FWA 8802

[2010] FWA 8802

FAIR WORK AUSTRALIA

DECISION

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

Ms Sarah Anne Marusic
v
SWS Evolution Pty Ltd T/A Evolution Lounge Bar
(U2010/10426)

COMMISSIONER CLOGHAN PERTH, 15 NOVEMBER 2010

Unfair dismissal remedy.

[1] On 9 July 2010, Ms Sarah Marusic made application to Fair Work Australia alleging that she was unfairly dismissed from her employment with SWS Evolution Pty Ltd (“the Employer”).

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

[3] Ms Marusic’s application was unable to be resolved at conciliation and subsequently referred to me for arbitration.

[4] The Employer in both conciliation and after the matter was referred to me, has objected to the application on the grounds that Ms Marusic had not completed 12 months continuous employment at the time her employment ceased. The Employer asserts it is a small business within the meaning of the Act.

[5] In the first instance, I convened a conference of the parties on 31 August 2010.

[6] The conference was adjourned at the request of Ms Marusic to seek legal advice and representation.

[7] Having not heard from Ms Marusic, the parties were advised on 14 October 2010 of a further conference scheduled for 26 October 2010.

[8] At the conference on 26 October 2010, two representatives of the Employer were present. Ms Marusic was not present and did not respond to a telephone call from my Associate. My Associate left a message seeking Ms Marusic to contact her.

[9] Having not heard, my Associate emailed Ms Marusic on 28 October 2010. The relevant parts of the email are as follows:

“The Commissioner has advised that unless you are able to advise that you are now in a position to pursue your application, he will dismiss the matter for want of prosecution by yourself.”

“Should you not advise me that you are now willing to proceed with the matter within seven (7) days of this email, the Commissioner intends to issue a Decision dismissing the application.”

[10] On 3 November 2010, Ms Marusic telephoned my Associate saying that her mobile telephone had been stolen and her emails corrupted. Notwithstanding this situation, Ms Marusic would respond by 4 November 2010.

[11] To date, Ms Marusic has not advised that she has obtained legal advice or representation and wishes to pursue her application.

[12] Having considered the Applicant’s absence from the conference on 26 October 2010, the time delays in progressing Ms Marusic’s application, her recent inability to respond to my Associate’s email and the Employer’s need for certainty and efficient use of resources, I have reached the conclusion that Ms Marusic’s actions do not indicate a desire to proceed with the application. For these reasons, the application will be dismissed.

[13] Accordingly, an Order will be issued to reflect this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR503925>