Troy Layton v Amaroo Hotel

[2011] FWA 9315

[2011] FWA 9315

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Troy Layton
v
Amaroo Hotel
(U2011/13207)

COMMISSIONER MCKENNA SYDNEY, 30 DECEMBER 2011

Application for unfair dismissal remedy - application dismissed for want of prosecution.

[1] On 2 November 2011, Troy Layton (“the applicant”) filed an application pursuant to s.394 of the Fair Work Act 2009 seeking an unfair dismissal remedy with respect to the termination of his employment by the Amaroo Hotel (“the respondent”).

[2] The matter was listed for a telephone conciliation conference on 24 November 2011 before a Fair Work Australia Conciliator. The matter did not settle and, in consequence, it was subsequently allocated to me. Further, the respondent, through its solicitors, Chadwick Workplace Law, has filed a jurisdictional objection to the application.

[3] I listed the matter for a mention by telephone on 14 December 2011, for the purpose of giving directions. That day, Mr N Chadwick, solicitor, appeared on behalf of the respondent, but a number of endeavours to contact the applicant on the telephone number he had provided in the application form were unsuccessful. Subsequent attempts after the listing to contact the applicant by telephone also proved to be unsuccessful. As such, I caused correspondence to be forwarded to the applicant together with a further notice of listing. That correspondence noted there had been no attendance by the applicant at the telephone mention. The applicant was advised the matter would be relisted on 22 December 2011 and he was to ensure that he was available on the telephone number provided in the application form or provide an alternative telephone number by 4.00pm on 21 December 2011. The applicant was also sent a notice of discontinuance in the event he had determined that he no longer wished to proceed with the application.

[4] The applicant did not contact my Associate to provide any telephone number different from that specified in the application form. When the matter was listed on 22 December 2011, a number of endeavours to contact the applicant for the mention by telephone were again unsuccessful. Mr Chadwick appeared for the respondent. He submitted that, given the history of the matter, the application should be dismissed for want of prosecution. Mr Chadwick submitted that the conciliation conference before a Fair Work Australia Conciliator was truncated by the applicant, when the applicant hung-up the telephone during that conference. Mr Chadwick noted the matter had since been listed twice before Fair Work Australia for directions concerning the jurisdictional objection, but the applicant had not appeared for the telephone listings and he had not contacted Fair Work Australia concerning his non-attendance or any other matter. Mr Chadwick referred also, in a more general way, to the costs that had been incurred by his client in relation to the initial telephone conciliation conference, as well as in relation to the two listings for directions before Fair Work Australia. Mr Chadwick submitted his client should not be put to the costs of representation that would be involved in a further listing of the application for directions, given the applicant’s lack of diligence in relation to his application to date and the unlikelihood of the applicant’s attendance at any further listing.

[5] The applicant has not contacted Fair Work Australia in relation to the two notices of listings that were forwarded to him concerning the proceedings that were listed on 14 December 2011 and 22 December 2011, and he has not contacted Fair Work Australia in relation to the correspondence dated 14 December 2011. Various endeavours to contact the applicant by telephone have been unsuccessful. The applicant did not contact Fair Work Australia following his non-attendances on 14 December 2011 and 22 December 2011. Having considered the history of matters and Mr Chadwick’s submissions, I am satisfied that it is appropriate to now dismiss the application for want of prosecution. An order has been issued in conjunction with this decision.

COMMISSIONER

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