Tristan Owen v NRW Pty Ltd T/A NRW Civil and Mining
[2012] FWA 9188
•30 OCTOBER 2012
[2012] FWA 9188 |
|
DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Tristan Owen
v
NRW Pty Ltd T/A NRW Civil and Mining
(C2012/4696)
COMMISSIONER BOOTH | BRISBANE, 30 OCTOBER 2012 |
Application to deal with unlawful termination dispute-application to amend application -application to dismiss.
[1] This matter arises from an application for Fair Work Australia (FWA) to deal with an unlawful termination dispute under section 773 of the Fair Work Act 2009 (the Act).
[2] Section 773 is one of two sections where an applicant can apply for relief from unlawful termination. The other is under s.365 of the Act.
[3] Although for reasons detailed below, it is not necessary to decide, it is noted that this application should have been brought under s.365 and Mr Owen (the Applicant) sought such an amendment.
[4] NRW Pty Ltd T/A NRW Civil and Mining (the Respondent) resisted the amendment on the grounds that while it may have been that the Applicant may have made a genuine mistake and acknowledged the discretion of the Tribunal to allow an amendment; it is submitted that the complaint itself was frivolous or vexatious and had no reasonable prospects of success.
[5] The Respondent did however agree to proceed to a conciliation conference on 17 September 2012 but reserved its rights in respect of the matter of the amendment of the application.
[6] On the day of this conference the Applicant advised he was not available. The listing was cancelled and the matter was relisted for 9 October 2012.
[7] On the afternoon of the 8 October 2012 my associate was advised by the Applicant that he would not be able to attend this rescheduled conference. He was advised to put this in writing and did so at 9:08 pm on 8 October 2012. This was onforwarded to the Respondent that evening.
[8] The Applicant was advised by telephone and was left several messages that the matter would be proceeding. He did not attend the conference.
[9] A letter that was then forwarded from my chambers to the Applicant (with copy to the Respondent) setting out the history of non-attendance and seeking reasons as to the failure to attend the conference.
[10] The Applicant apologised in response and explained the absence from the conference as follows:
“I should have realised earlier that my roster change would affect my days off and alerted you guys so other arrangement could be made. I do wish to pursue and set up another date...”
[11] In response, the Respondent repeated its earlier submissions noting that they had made themselves available on two separate occasions to discuss the application and that the Applicant had not demonstrated commitment to resolving the process and had not made himself available on either occasion.
[12] The Respondent sought that the application be dismissed on grounds of frivolous or vexatious with no reasonable prospects of success.
[13] Section 587 is in the following terms:
“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.”
[14] Turning firstly to the Respondent’s application to dismiss on the grounds that the complaint is frivolous vexatious or has no reasonable prospects of success. I decline to dismiss on these grounds as I am prohibited from doing so pursuant to section 587(2) (a) and (b).
[15] However, as the introductory words in s.587(1) provide, the circumstances when FWA may dismiss an application are not limited to those matters in s.587(2) of the Act.
[16] In this matter I have described the steps taken by the Tribunal to inform the Applicant on two occasions of the conferences. The Respondent made themselves available on both occasions. On neither occasion did the Applicant appear or provide a reasonable explanation for his non-appearance. As a matter of fairness to the Respondent I consider that it is appropriate that the matter be brought to an end. I therefore order that the Applicant’s application under s.773 be dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR530700>
0
0