Aimee Smith v The Cutters Lounge

[2017] FWC 2478

[2017] FWC 2478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aimee Smith
v
The Cutters Lounge
(U2017/1020)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 MAY 2017

Application for an unfair dismissal remedy.

[1] On 1 February 2017, Ms Aimee Smith made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Smith was notified of her dismissal by The Cutters Lounge on 14 January 2017.

[2] The matter was listed for conciliation on 14 March 2017, however it could not take place as Ms Smith could not be contacted. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Smith was directed to file an outline of argument, statement of evidence and document list by noon on Monday, 10 April 2017. Ms Smith did not comply with this direction.

[4] On 11 April 2017, the Fair Work Commission attempted to telephone Ms Smith regarding her outstanding material, however this was unsuccessful and no voicemail was able to be left.

[5] On 12 April 2017, The Cutters Lounge filed an application pursuant to s.399A of the Act, seeking the dismissal of Ms Smith’s application due to her failure to comply with a direction of the Commission. The following day, Ms Smith was sent correspondence informing her of The Cutters Lounge’s s.399A application. Ms Smith was directed to file submissions and other documentary material in respect of The Cutters Lounge’s application by close of business on Monday, 24 April 2017. Ms Smith was advised that if she failed to comply with this direction, her application would be dismissed.

[6] On 21 April 2017, an SMS message was sent to Ms Smith reminding her that material was due to be filed on 24 April 2017.

[7] On 24 April 2017, an attempt to telephone Ms Smith was made, however she could not be contacted. A further SMS message was sent to her advising that material was due to be filed that day.

[8] Ms Smith did not file any material with the Commission.

[9] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As Ms Smith did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Smith has failed to respond to the Commission’s correspondence and shown a lack of willingness to prosecute her case. She has provided no explanation for her failure to comply with directions in relation to her application under s.394 of the Act and The Cutters Lounge’s application under s.399A of the Act. In these circumstances, I will exercise my discretion under s.399A(1)(b) of the Act and dismiss Ms Smith’s application. An order giving effect to this decision will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR592667>