Amanda Veinot v Life Without Barriers

[2019] FWC 4277

[2019] FWC 4277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Veinot
v
Life Without Barriers
(U2019/3223)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 21 March 2019, Ms Amanda Veinot made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application,Ms Veinot said she was notified her employment had been terminated by Life Without Barriers (LWB) on 4 March 2019.

[3] The matter proceeded to conciliation on 2 May 2019. At the conclusion of the conciliation, the parties agreed that the file should remain open for a further three business days to allow Ms Veinot time to consider LWB’s offer to resolve the dispute.

[4] On 9 May 2019, the conciliator referred the file for Arbitration.

[5] On 14 May 2019, a Notice of Listing was issued to the parties scheduling the matter for Arbitration Conference/Hearing on 17-19 July 2019. Directions were also issued for the filing of material, requiring Ms Veinot to file her material by no later than noon on 3 June 2019 and LWB to file its material by no later than noon on 24 June 2019.

[6] As no material was received from Ms Veinot, in the afternoon of 3 June 2019, email correspondence was sent to her requesting that she advise when she intended to file her submissions. The following day, Ms Veinot replied to the email and advised “[t]here are a number of other contributing factors which is making this request very complex. I'm currently seeking guidance on how to proceed.” Ms Veinot was then advised that if she sought an extension to file her material, she should urgently provide the details of the request and that if no response was received by noon on 5 June 2019, the matter would be listed for a non-compliance hearing on 7 June 2019.

[7] On 5 June 2019, the Commission attempted to telephone Ms Veinot, however someone else answered the phone and advised “we don’t have an Amanda here.” A Notice of Listing was then sent to the parties scheduling the matter for a non-compliance hearing before Deputy President Masson on 7 June 2019.

[8] The non-compliance hearing proceeded before Deputy President Masson on 7 June 2019. Ms Veinot could not be contacted. Ms Amanda Green of Australian Industry Group appeared for LWB and advised the Deputy President that Ms Veinot had previously been in contact regarding settling the matter but Ms Green had not heard from her in over a week. Ms Green made an oral application on behalf of LWB that the matter be dismissed pursuant to s.399A of the Act due to Ms Veinot’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[9] Following the non-compliance hearing, correspondence was sent to Ms Veinot’s nominated email and postal addresses advising her of LWB’s s.399A application. Ms Veinot was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4.00pm on 14 June 2019. The correspondence also noted that if the Commission did not receive a response, Ms Veinot’s application for relief from unfair dismissal may be dismissed. A review of the express post tracking ID indicates the correspondence was delivered to Ms Veinot on 13 June 2019.

[10] To date, Ms Veinot has not filed any material with the Commission.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing her application and attending the conciliation, Ms Veinot has failed to actively prosecute her case. Besides her email of 4 June 2019 advising she was seeking further guidance on how to proceed, Ms Veinot has provided no explanation to the Commission for either her continued failure to comply with the directions or her failure to attend the non-compliance hearing on 7 June 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Veinot’s application. This ends her unfair dismissal application.

[15] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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