Sharne Brock-Fenton v Desecrate Pty Ltd T/A Bright Buttons Erina/Bright Buttons Babies Centre Killarney Vale
[2011] FWA 1672
•17 MARCH 2011
[2011] FWA 1672 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Sharne Brock-Fenton
v
Desecrate Pty Ltd T/A Bright Buttons Erina/Bright Buttons Babies Centre Killarney Vale
(C2011/3365)
COMMISSIONER MCKENNA | SYDNEY, 17 MARCH 2011 |
Application to deal with contraventions involving dismissal.
[1] On 18 February 2011, Sharne Brock-Fenton (“the applicant”) filed an application pursuant to s.365 of the Fair Work Act 2011 (“the Act”) to deal with contraventions involving dismissal, naming Desecrate Pty Ltd T/A Bright Buttons Erina/Bright Button Babies Centre Killarney Vale as the respondent.
[2] The matter was listed for conference on 2 March 2011. Advice of that listing was forwarded to the applicant by two means, that is, by express mail to the street address provided by the applicant as well as to the email address provided by the applicant in the Form F8.
[3] At the initial conference on 2 March 2011, there was no appearance by or on behalf of the applicant, although Mr J Kennedy, director, appeared that day on behalf of the respondent. Upon being contacted by my Associate by telephone that day, I am informed the applicant stated that she was not aware of the listing as she had not received the mailed or emailed notice of listing. My Associate confirmed as being correct the applicant’s contact details.
[4] A further conference was scheduled for 8 March 2011. A notice of listing was sent to the applicant by express mail and by email, to addresses which the applicant had confirmed. It may also be noted that my Associate attempted unsuccessfully to contact the applicant on a number of occasions by telephone concerning the listing scheduled for 8 March 2011.
[5] At the second conference listed on 8 March 2011, Mr Kennedy again entered an appearance but there was no appearance by or on behalf of the applicant. On 8 March 2011, my Associate attempted to contact the applicant concerning the non-attendance on the telephone number provided by the applicant. I am informed that a person identifying himself as the applicant’s husband stated he did not know whether the applicant was aware of the listing, that the applicant had temporarily moved due to home renovations and that he could not assist with the provision of the applicant’s mobile telephone number. The applicant did not thereafter contact Fair Work Australia concerning her non-attendance at the second conference on 8 March 2011 or about any other matter.
[6] Given the applicant’s non-attendance, I caused correspondence to be forwarded to the applicant on 8 March 2011. That correspondence was sent to the applicant by express mail and by email seeking confirmation from the applicant whether she wished to pursue the application or discontinue the application, with advice thereto to be provided by the applicant to Fair Work Australia by no later than 4.00pm on 15 March 2011. The correspondence advised the applicant that the application may be dismissed absent any communication from her by that date. As of today, 17 March 2011, no further communication has been received from the applicant.
[7] 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.”
[8] The applicant failed to attend the initial conference listed on 2 March 2011, albeit I note the applicant stated to my Associate she had not received the mailed and emailed notice of listing. The applicant then failed to attend the second conference listed on 8 March 2011, without explanation or communication. Further, the applicant failed to make any communication to Fair Work Australia in response to the correspondence dated 8 March 2011 by the date specified. Further, attempts by my Associate to contact the applicant by telephone following the initial telephone conversation on 2 March 2011 have all been unsuccessful.
[9] Having regard to the history of matters, I have determined, on my own initiative pursuant to s.587(3)(a) of the Act, to dismiss this application for want of prosecution pursuant to s.587(1) - which specifies, “without limiting”, the circumstances when Fair Work Australia may dismiss an application. An order dismissing the application has been issued in conjunction with the publication of this decision.
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