Skopljak v Transdev Melbourne Pty Ltd Summary

[2016] FWC 2763

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Zdravko Skopljak
v
Transdev Melbourne Pty Ltd
(U2015/16278)
COMMISSIONER GREGORY	MELBOURNE, 4 MAY 2016
Application for extension of time.

[1] The above Application was filed on behalf of Mr Skopljak on 27 November 2015 and

subsequently listed for hearing before me on 17 February 2016 following a Notice of Listing

distributed to the parties on 18 January 2016. The original F2 Unfair Dismissal application

also indicated an interpreter would be required for the hearing and this was arranged and the

interpreter attended on the day of the hearing.

[2] Both parties filed submissions in relation to the matter, however, on 29 January 2016

the Applicant’s representative indicated he was no longer acting on behalf of Mr Skopljak.

The Applicant’s daughter then contacted the Commission on 12 February to advise that her

father was seeking further legal advice. The Commission also provided an explanation in this

conversation about what was to be done if Mr Skopljak no longer wanted to proceed with the

application.

[3] On the day of the hearing the Respondent’s representative was in attendance, however,

there was no appearance by the Applicant, or any representative on his behalf. The

Commission subsequently contacted Mr Skopljak by telephone, and when he was told the

hearing was taking place he advised he was unable to attend due to his existing work

commitments. He also indicated his daughter would be in further contact with the

Commission later that day to provide an explanation about his non-attendance, and about his

intentions in regard to the application. However, this did not occur and no further contact has

been received from the Applicant, or anyone else on his behalf, since that time.

[4] On 26 April 2016 my chambers forwarded the following correspondence to the

Applicant by both email and post.

“I refer to the above matter which was listed for an extension of time hearing on 17
February 2016 which you did not attend.
I note that when contacted by telephone that day you did not provide a clear
explanation as to why you were not in attendance, and the Commission has not heard
from you since as to whether you wish to proceed with your application.
[2016] FWC 2763
The Commission is now minded to dismiss your application for lack of prosecution.
You now have seven days to advise why your application should be able to proceed.
If you do not wish to proceed with the matter, you may wish to file an F50 – Notice of
Discontinuance in this time.
Any other submissions you wish to make should also be provided to the Respondent,
and will be considered accordingly.
If no response is received from you, a Decision will be issued dismissing the
application on 4 May 2016.”
[5] The Applicant has not provided a response to this correspondence to date.
[6] Section 587 of the Fair Work Act 2009 provides the Commission with broad powers to

dismiss an application. Given the circumstances referred to above I consider it appropriate in

this case to dismiss the present application for want of prosecution. The application is

accordingly dismissed under s.587.

COMMISSIONER

Appearances:

M Bower appeared on behalf of Transdev.

Hearing details:

2016.

Melbourne:

17 February.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Skopljak v Transdev Melbourne Pty Ltd, Zdravko Skopljak, the applicant, applied for an extension of time in relation to a claim of unfair dismissal against Transdev Melbourne Pty Ltd, the respondent. The application was filed on 27 November 2015 and scheduled for a hearing on 17 February 2016. Skopljak's initial representative withdrew from the case on 29 January 2016, and Skopljak himself did not appear at the hearing, despite the need for an interpreter. Skopljak cited work commitments as his reason for non-attendance, but did not provide further explanation or submit any further contact with the Commission. Despite a follow-up communication from the Commission on 26 April 2016, Skopljak did not respond, leading the Commission to dismiss the application for want of prosecution under section 587 of the Fair Work Act 2009.

The legal issues before the Commissioner involved the appropriate exercise of the Commission's discretion under section 587 of the Fair Work Act 2009 to dismiss an application for want of prosecution. Skopljak's failure to attend the hearing, his lack of communication with the Commission, and his absence of response to the Commission's follow-up correspondence were central to the decision. The Commissioner had to consider whether Skopljak's absence and lack of communication constituted sufficient grounds for dismissal under the Act.

The Commissioner found that the circumstances justified the dismissal of Skopljak's application. Skopljak's absence from the hearing, coupled with his failure to communicate with the Commission regarding his intentions, demonstrated a lack of effort to pursue the application. The Commission's attempt to contact Skopljak and provide him with an opportunity to explain his absence further underscored the need for proactive engagement from the applicant. Ultimately, the Commissioner concluded that Skopljak's non-attendance and lack of communication warranted the dismissal of the application under section 587 of the Fair Work Act 2009.

The final orders of the Commission were that Skopljak's application for an extension of time was dismissed for want of prosecution. Skopljak was given the opportunity to respond to the Commission's correspondence but failed to do so, leading to the dismissal of the application. The decision reflects the importance of active participation and communication in legal proceedings before the Commission.

Skopljak v Transdev Melbourne Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established