Rogers v Corowa Nursery and Garden Centre

[2011] FWA 2362

[2011] FWA 2362

FAIR WORK AUSTRALIA

DECISION

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

Rogers
v
Corowa Nursery and Garden Centre
(U2010/5916)

COMMISSIONER CAMBRIDGE SYDNEY, 15 APRIL 2011

Unfair dismissal - claim settled at conciliation - applicant failed to file notice of discontinuance - applicant failed to appear at subsequent proceedings or agitate claim further - application dismissed for want of prosecution.

[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 at Sydney on 8 February 2010. The application was made by Leigh Rogers (the applicant), and the respondent employer was identified to be Corowa Nursery and Garden Centre (the employer).

[2] The application stated that the date of dismissal was 28 January 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] Initially there were difficulties experienced with arrangements for conciliation of the claim. Eventually conciliation of the matter was conducted before Fair Work Australia (FWA) on 16 June 2010 in Albury.

[4] The transcript of proceedings held on 16 June recorded that after some off-record discussions an agreement had been reached to settle the claim. The parties confirmed on-record that an agreement to settle the claim had been reached and it was anticipated that once the applicant had received the net agreed settlement money he would file a notice of discontinuance in the matter.

[5] In due course the applicant indicated that he would not file a notice of discontinuance. In the circumstances the matter was re-listed for further proceedings via telephone conference on 22 February 2011.

[6] At the proceedings held on 22 February Mr I Ritchie together with Ms S Barkley appeared via telephone link for the employer and there was no appearance by or on behalf of the applicant.

[7] The transcript of the proceedings held on 22 February 2011 provides a summary of the history of this matter and includes reference to various communications between the applicant and FWA. These communications and the applicant’s failure to appear either in person or via telephone, suggested that the applicant was not pursuing the claim with any reasonable diligence. In addition, those representing the employer confirmed that the cheque containing the settlement amount made out to the applicant had been presented and paid.

[8] The applicant has failed to make any further contact with FWA. The applicant has not provided any explanation for his failure to appear at or via telephone link with the proceedings held on 22 February 2011, nor has he advanced any further request for proceedings to be held so as to enable determination of his claim.

[9] Therefore, pursuant to section 587 of the Act the application in this matter is dismissed for want of prosecution. An Order [PR508531] confirming the dismissal of the claim is issued separately.

COMMISSIONER

Appearances:

No appearancefor the applicant.

Mr I Ritchie, from Faram Ritchie Davies Lawyers together with Ms S Barkley for Corowa Nursery and Garden Centre.

Hearing details:

Albury,
16 June 2010
Sydney,
22 February 2011.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR508529>