Paul Davys v Commonwealth Bank of Australia
[2010] FWA 3632
•20 MAY 2010
[2010] FWA 3632 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Paul Davys
v
Commonwealth Bank of Australia
(U2009/14553)
COMMISSIONER ROBERTS | SYDNEY, 20 MAY 2010 |
Termination of employment – s.394 of the Act - failure of applicant to comply with directions or otherwise pursue application - application struck out.
[1] This decision concerns an application by Mr Davys made on 8 December 2009 for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) for alleged unfair dismissal by the Commonwealth Bank of Australia (the CBA or the Bank). The application was the subject of unsuccessful conciliation on 17 February 2010 and then the mater was referred to me for arbitration.
[2] On 10 March 2010 My Davys requested that his application be heard in Sydney for a number of reasons, including travel difficulties concerning a proposed witness from Brisbane. I then decided to accommodate Mr Davys’ request in part, by scheduling his case to be heard in Sydney on 20 and 21 May 2010 and the Respondent’s case in reply in Griffith on 24, 25, 26, 27 and 28 May.
[3] Directions were issued on 26 March 2010 but were not complied with by Mr Davys. Numerous attempts were made to contact Mr Davys by telephone and email through my Associate but such efforts were unsuccessful.
[4] On 22 April 2010 my Associate wrote to Mr Davys in the following terms:
“Commissioner Roberts has directed me to advise you that due to your non-compliance with his Directions issued on 26 March 2010 he has vacated the scheduled hearing dates set down for the arbitration of your application for relief.
All attempts to contact you have been unsuccessful and you are now directed to inform this Office by close of business on Tuesday 27 April 2010 whether you wish to pursue your claim. Should you not comply with this direction, Commissioner Roberts will consider striking out your application either on his own motion or on application by the Respondent former Employer. Before any decision on striking out your application you will be provided with the opportunity to make a submission if you wish.”
[5] No reply to the above correspondence was received nor any other form of contact by Mr Davys. On 29 April 2010, Mr M Sant of Gadens Lawyers (acting for the CBA) wrote to my Associate requesting that Mr Davys’ application be dismissed and reserving its right in relation to costs.
[6] On 30 April 2010 I wrote to Mr Davys in the following terms:
“Further to my letter to you dated 22 April 2010, it is noted that you failed to contact my chambers as directed.
You are now required to show cause within 14 days of the date of this letter as to why your application should not be dismissed. If I do not hear from you within 14 days or I am not satisfied with your explanation for your failure to comply with directions, I intend to dismiss the application in accordance with section 587 of the Fair Work Act 2009.”
[7] Again, there has been no response from Mr Davys. After allowing Mr Davys a consideration period of time in which to pursue his application, I have reached the conclusion that he no longer intends to do so.
[8] Section 587 of the Act provides:
“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] In accordance with the discretion granted to me by the above section of the Act, I hereby dismiss and strike out Mr Davys’ application for relief.
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