Raven Marsters v Allstaff Australia Qld Pty Ltd

[2022] FWC 1192

[2022] FWC 1192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Raven Marsters
v

Allstaff Australia Qld Pty Ltd

(U2022/2087)

COMMISSIONER SIMPSON BRISBANE, 16 MAY 2022

Application for an unfair dismissal remedy - application dismissed

1. This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged in Brisbane on 17 February 2022. The application was made by Ms Raven Marsters (the applicant) and the respondent employer is Allstaff Australia Qld Pty Ltd (the employer).

1. The application was then referred to my Chambers for Arbitration.

1. A Hearing was listed for 6 June 2022. The Applicant was directed to file submissions in relation to her application to be filed to my Chambers and served on the Respondent no later than 5:00pm on Wednesday 4 May 2022.

1. No such material was received by my Chambers.

1. My Chambers sent an email to the Applicant on 5 May 2022, noting that in the absence of any material, the matter was to be listed for a Non-Compliance Hearing. At this time, the Applicant was also advised that the Respondent had consented to a Member Assisted Conciliation and the Applicant was requested to advise her consent.

1. Nothing further was received from the Applicant and the matter was listed for a Non-Compliance Hearing on Monday 16 May 2022.

1. Attempts to make contact with the Applicant on the telephone numbers provided by the Applicant were made without success. The Respondent appeared at the Hearing, however I determined not to proceed as a result of the Applicant’s failure to attend.

1. To date no response of any form has been received from the Applicant. The notifications from the Tribunal have all been directed to the email address provided by the Applicant on her application, which is the same email address that the Applicant has used in the course of this matter and had previously acknowledged and responded to email correspondence from the Tribunal.

Consideration

1. In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

1. The Full Bench of Fair Work Commission in Sayer v Melsteel [1]Pty Ltd considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to Fair Work Commission to consider exercising the power of the Tribunal under s.587(1). Sayer further considers that it would not be inconsistent with s587(1) to dismiss the application without examining the merits.

1. I adopt the approach of the Full Bench in Sayer in this matter.

1. The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above.

1. Accordingly, the matter is dismissed.

COMMISSIONER

[1] Sayer v Melsteel[2011] FWAFB 7498

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