Angela Quigley v Maitland Park Bowling Club

[2013] FWC 3919

[2013] FWC 3919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angela Quigley
v
Maitland Park Bowling Club
(U2013/7090)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 JUNE 2013

Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 4 March 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms Angela Quigley (the Applicant). The Applicant’s employment had been terminated by the Maitland Bowling Club (the Respondent) on 14 February 2013.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, 3 May 2013. The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before Commissioner Jones on 17 May 2013.

[4] The Applicant failed to attend the non compliance hearing. Due to the absence of the Applicant, Commissioner Jones decided to make a further direction to the Applicant to file material in respect of her application by close of business, 24 May 2013. The Commissioner advised that failure to comply with this direction would result in the matter being dismissed.

[5] On 20 May 2013, the Fair Work Commission (the Commission) spoke with the Applicant who advised that she was unable to attend the hearing as she was in hospital. The Applicant was informed of Commissioner Jones’ decision and advised to file her material or, if she was unable to meet this direction, to write to the Commission.

[6] On 22 May 2013, the Applicant contacted the Commission and advised that she was in a position to file her material on time and would hopefully do so by the next day.

[7] The Applicant did not file any material with the Commission.

[8] On 5 June 2013, the Respondent filed an objection to the application and sought the dismissal of the Applicant’s application. The Respondent based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the non compliance hearing.

[1] Further, the Respondent claimed that the Applicant is a vexatious litigant and the continuation of this matter has put strain on the resources of the Respondent, a small business and a not for profit organisation.

[2] The Applicant was sent a copy of the Respondent’s objection (by express post and email) and was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 14 June 2013.

[3] The Applicant did not file any material with the Commission.

[4] 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

[5] Taking into account the provisions of s.399A and specifically s.399A(2), I am satisfied that the Respondent’s objection filed on 5 June 2013 is an application to have the matter dismissed for the Applicant’s failure to meet the provisions of ss.399A(1)(a) and (b).

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

[7] As the Applicant did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[8] After considering all the material, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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