Slavica Josevska v Assetlink
[2011] FWA 3705
•16 JUNE 2011
[2011] FWA 3705 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Slavica Josevska
v
Assetlink
(U2010/14056)
COMMISSIONER BISSETT | MELBOURNE, 16 JUNE 2011 |
Application for unfair dismissal remedy - failure to discontinue or prosecute case.
[1] This is an application by Ms Slavica Josevska under s.394 of the Fair Work Act 2009 (the Act) for a remedy from unfair dismissal.
[2] Ms Josevska claims her employment was terminated by Assetlink on 29 October 2010.
[3] Assetlink raised a jurisdictional objection to the matter being heard, claiming it was not the employer of Ms Josevska.
[4] Directions were issued for the jurisdictional objection to be dealt with. Assetlink lodged a written submission with Fair Work Australia. Ms Josevska did not file any material in accordance with those directions.
[5] The matter was listed for arbitration of the jurisdictional issues on 14 January 2011.
[6] On 11 January 2011 I received correspondence from the Applicant’s representative seeking an adjournment of the hearing scheduled for 14 January 2011 on medical grounds. I requested that the Applicant substantiate the request through the provision of a medical certificate from her treating doctor and provide details of when she may be well enough to enable the matter to be relisted.
[7] In response to my request the Applicant advised that she intended to discontinue the matter. A notice of discontinuance was sent to the Applicant for her to complete and return to Fair Work Australia.
[8] The Applicant failed to return the form. My associate contacted the Applicant’s representative again on 28 March 2011 (and re-sent the notice of discontinuance form) and on 26 May 2011 by email requesting the form be competed and returned and inviting the Applicant to contact chambers if she had any queries. The Applicant was also advised that a failure to complete a notice of discontinuance or to contact Fair Work Australia would result in the application for unfair dismissal being dismissed.
Conclusion
[9] The Applicant has been given multiple opportunities to provide advice to Fair Work Australia as to how and when she would have her application for unfair dismissal remedy treated. Beyond verbal advice through her representative that she intended to discontinue her application the Applicant has failed to either discontinue her application or prosecute her case.
[10] An application to Fair Work Australia may be dismissed by Fair Work Australia either on its own motion or on application. Section 587 of the Act sets out, but does not limit, the bases on which an application may be dismissed.
[11] The Applicant has been provided with multiple opportunities to discontinue her case as she indicated she would do. She has failed to provide the necessary advice to Fair Work Australia. Alternatively, she has been given adequate opportunity to have the matter dealt with. Again she has failed to do so.
[12] It is apparent however from the conversations between my associate and the Applicant’s representative that the Applicant does not intend to pursue the matter. Given these circumstances I do not consider any utility in keeping the file open.
[13] The application is therefore dismissed.
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