Nathan Ireland v Casino Canberra Limited

[2012] FWA 7060

[2012] FWA 7060

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Ireland
v
Casino Canberra Limited
(U2012/7082)

COMMISSIONER DEEGAN CANBERRA, 17 AUGUST 2012

Application for unfair dismissal, non compliance with directions, application dismissed

[1] On 13 April 2012 Mr Nathan Ireland (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 his employment by the Casino Canberra Limited (the respondent).

[2] The application was listed for a conciliation conference on 8 May 2012. The Applicant was notified of the listing but could not be contacted at the time of the conference. He subsequently informed the Conciliator that his phone had malfunctioned at the time of the conference. The matter was again listed for conciliation on 23 May and once again the applicant could not be contacted at the time the conciliation was due to commence. The applicant subsequently informed the conciliator that he did not receive a notice of listing for the second conciliation.

[3] On 5 June the matter was listed for a third conciliation to take place on 15 June. On 11 June the applicant emailed the conciliator to inform her that he was departing Australia the following day. The conciliator requested in two further emails that the applicant provide an overseas number on which he would be contactable. The applicant did not respond. The third listed conciliation could not take place as the applicant was not contactable on his mobile phone and no overseas number had been provided.

[4] As three attempts to conciliate the matter had failed the application was allocated for arbitration. Directions were issued on 26 June 2012 requiring the Applicant to lodge, by 17 July 2012, an outline of submissions and statements of any witnesses he intended to call. An additional direction in capitals letters clearly indicated that a failure by the applicant to comply with the directions, would in all likelihood, result in the matter being dismissed for want of prosecution. A Notice of Listing stating that the application was listed for an arbitration conference/hearing on 14 August 2012 accompanied the Directions.

[5] No submissions or witness statements were filed by the applicant within the time period allowed, or at all. The respondent was informed that they would not be required to appear on 14 August 2012 as the applicant had not complied with the Directions.

[6] Despite a number of emails being sent from my Chambers to the applicant, Fair Work Australia (FWA) received no further contact from the applicant until 10.00am on 14 August when the applicant appeared at the hearing.

[7] When questioned about his failure to comply with the Directions or otherwise contact FWA the applicant stated that he had been overseas and had not checked his email.

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

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.

[9] Despite lodging his application under s.394 of the Act the applicant failed on three separate occasions to make himself available for a conciliation conference. The employer representatives were available on each occasion. The applicant was aware that his application was underway but failed to notify FWA that he intended to absent himself from the country until the day before he left. He then made no effort to follow up on his application for the following two months. Clearly he was aware of the listing as he appeared at the hearing on 14 August. He had no excuse for either his failure to comply with the directions or to contact FWA other than claiming that he had been overseas (in Spain and on the Greek Islands) and was unable “access the internet”.

[10] I do not accept the applicant’s excuse for his failure to comply with the directions in this matter. He was aware that the matter was to proceed and was informed that if he did not comply with the directions, the matter would, in all likelihood, be dismissed. He took no action to contact FWA or pursue the matter for a full two months.

[11] It is not reasonable for an employer be put to the trouble and expense of responding to an application of this type in circumstances where the applicant treats the matter so casually.

[12] 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. I note that s.587(1) does not limit the circumstances in which Fair Work Australia may dismiss an application.

[13] The application is dismissed.

COMMISSIONER

Appearances:

The applicant in person.

The respondent was not required to attend the hearing.

Hearing details:

2012.
Canberra:
14 August.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR528047>