Trisha Markwort v Park Trent Real Estate Pty Limited

[2011] FWA 3907

[2011] FWA 3907

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trisha Markwort
v
Park Trent Real Estate Pty Limited
(U2011/5371)

COMMISSIONER CONNOR WOLLONGONG, 20 JUNE 2011

Application for alleged unfair dismissal—claim for monetary compensation

[1] Mrs Trisha Markwort had been employed by Park Trent Real Estate Pty Limited for a period of eight years when on Thursday, 10 February, 201 she was dismissed. On Wednesday, 23 February, 2011 Mrs Markwort lodged an application under s.394 of the federal Fair Work Act 2009. Conciliation by teleconference on Tuesday, 22 March, 2011 was unsuccessful and the application was allocated to me for hearing in the premises which Fair Work Australia now shares with the New South Wales Industrial Relations Commission at 90 Crown Street, Wollongong. All proceedings with respect to this matter were conducted in Wollongong.

[2] I set the matter down for mention and programming on Thursday, 21 April, 2011. At that time I was informed that Mrs Markwort’s claim was confined to monetary compensation alone. Shortly after her dismissal Mrs Markwort obtained another job. In terms of s.392(2)(e), one of the matters I am directed to take into account when assessing the amount of monetary compensation is:

"...the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation..."

[3] Since Mrs Markwort found alternative employment shortly after her dismissal by Park Trent and, whilst she indicated that she is presently not earning as much as she formerly had when she worked for Park Trent, the amount of compensation properly available to her, if she is successful in her claim for monetary compensation, would not therefore be a large sum. For that reason I adjourned the proceedings for a further mention on Wednesday, 25 May, 2011 to facilitate further discussions between the parties with a view to some settlement being reached. In the circumstances, it seemed appropriate for there to be further discussions concerning this issue to avoid the expense of unnecessary litigation.

[4] When the matter resumed before me on Monday, 6 June, 2011 and later on Friday, 10 June, 2011 Ms Markwort’s solicitor, Ms Pearson, informed me that the matter had not been settled by conciliation and that she had, in fact, received no instructions from Ms Markwort and was now ceasing to act for her. I set the matter down for a hearing on Monday, 20 June, 2011, advising Ms Markwort directly of that hearing.

[5] Mrs Markwort appears to have been under the misapprehension that the hearing of this matter was Friday, 17 June, 2011. She forwarded an e-mail to me on that day indicating:

“...I cannot make the hearing today. I am violently ill; and so is my son. If I could make it, I would but I have no-one to take care of my son. Can you please re-schedule (adjourn) the hearing? I sent an e-mail to Fair Work Australia two weeks ago requesting assistance and detailing my position, although I have not heard from anyone...”

[6] Ms Markwort claimed that Park Trent still owed her unpaid wages, superannuation, long service leave and sales commissions, and that Park Trent was aware of her claim but had refused to pay her. And that appears to be chief concern. Park Trent disputes her claims in that respect and denies that there are any outstanding entitlements for Mrs Markwort. Whilst, those may be matters appropriately addressed in the conciliation of any claim of unfair dismissal, ie to conclude all issues in dispute between the parties at the one time, in my view they fall outside my jurisdiction of an arbitrated claim under s.394.

[7] Mrs Markwort was informed that her claim of underpayment of wages, superannuation and long service leave may be pursued by her before the Federal Ombudsman. She indicated that she intended to follow that course of action. And shortly before the hearing on Monday, 20 June, 2011 commenced, she forwarded a further e-mail to my assistant explaining that her child was still sick. She indicated that she intends to meet with the Federal Ombudsman to discuss the claim she has made for outstanding entitlements. She did not appear in the hearing on Monday, 20 June, 2011 and Park Trent submitted that I should in the circumstances dismiss her Part 6 application.

[8] When a s.394 applicant does not appear at the relevant time, her case may be dismissed for want of prosecution. It would constitute an injustice to the respondent employer not to proceed on that basis and I do so. The applicant carries the onus of establishing the unfairness in a dismissal and because of her failure to appear in the proceedings, she has not discharged that onus. Particularly, in the nature of the claim she now makes against Park Trent, it seems to me that her s.394 application can have no benefit to her.

[9] I therefore propose to accede to the request made by Park Trent and dismiss the matter.

COMMISSIONER

Appearances:

Applicant failed to appear

(Natasha Pearson of Maguire and McInerney Lawyers for the applicant, subsequently ceasing to act)

Ron Cross for the respondent

2011

Wollongong

June, 20

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