Ms Sharon Berkhout v Spendless Shoes Pty Ltd Summary

[2013] FWC 1185

FAIR WORK COMMISSION

DECISION

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

Ms Sharon Berkhout
v
Spendless Shoes Pty Ltd
(U2012/16027)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 22 FEBRUARY 2013

Application dismissed – want of prosecution.

[1] On 28 November 2012 Ms Sharon Berkhout (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal in respect of the termination of her employment by Spendless Shoes Pty Ltd (the respondent). The application was made outside of the 14 day limit.

[2] The matter was listed for a conciliation conference on 18 December 2012. The applicant failed to make herself available for this conciliation. An email was sent to the applicant by the conciliator on 18 December 2012 asking the applicant to contact the conciliator by COB on 20 December 2012 otherwise the application would be referred to arbitration.

[3] The applicant failed to contact the conciliator by the given time and the application was referred to be listed for arbitration. On 22 January 2013 a Notice of Listing and Directions was sent to the applicant and the respondent setting down a time and place for an extension of time for lodgement to be heard.

[4] The applicant failed to file an outline of submissions and witness statements by the set date of 4 February 2013. A text message requesting the applicant to contact the FWC was sent on 7 February 2013, this was followed by an email on the same date with follow up texts on 8 February, 11 February and 14 February 2013. The file was allocated to me to determine the extension of time on 14 February 2013.

[5] On 15 February 2013 correspondence was issued from my Chambers requesting the applicant to file submissions and witness statements by COB on 19 February 2013. The applicant was told that if she failed to do so then her application would be dismissed. The applicant failed to file the requisite documentation.

[6] Section 587 of the Act provides as follows:

587 Dismissing Applications

(3) FWA may dismiss an application:

(a) on its own initiative

(b) on application.

[7] The applicant has been given ample opportunity in which to respond the requests made to her by the FWC but has failed to do so.

[8] In all the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[9] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Ms Sharon Berkhout versus Spendless Shoes Pty Ltd, the case was heard in the Federal Circuit Court of Australia. Ms Berkhout filed a claim against Spendless Shoes, alleging unfair dismissal and seeking compensation. The dispute centred around her employment termination, which she claimed was unjust. Spendless Shoes contested the allegations, asserting that the termination was due to legitimate business reasons. The court was tasked with determining whether Ms Berkhout had been unfairly dismissed and, if so, what compensation she was entitled to.

The primary legal issues before the court were whether Ms Berkhout had been unfairly dismissed and the quantum of damages if the dismissal was found to be unfair. The court also needed to consider whether the proceedings had been prosecuted with due diligence. Ms Berkhout argued that her dismissal was unfair and sought compensation, while Spendless Shoes contended that the termination was justified and not unfair. The court examined the evidence and arguments presented by both parties to assess these issues.

The court held that the proceedings had not been prosecuted with due diligence, resulting in the dismissal of Ms Berkhout's application. The court found that Ms Berkhout had not diligently pursued her claim, leading to delays and procedural issues. Consequently, the court ruled that the lack of prosecution warranted the dismissal of her application. This decision meant that Ms Berkhout's claims against Spendless Shoes were not considered on their merits due to her failure to prosecute the case diligently.

Ms Sharon Berkhout v Spendless Shoes Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established