Ashleigh Leckie v Collie River Valley Medical Centre

[2017] FWC 6483

[2017] FWC 6483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashleigh Leckie
v
Collie River Valley Medical Centre
(U2017/10618)

DEPUTY PRESIDENT BINET PERTH, 12 DECEMBER 2017

Application for an unfair dismissal remedy - application by respondent pursuant to s.399A - application dismissed.

[1] On 3 October 2017, Ms Ashleigh Leckie (Ms Leckie) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Collie River Valley Medical Centre (CRVMC).

[2] On 5 October 2017, CRVMC lodged a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.

[3] The matter was listed for a telephone conciliation before an FWC conciliator on 25 October 2017. CRVMC were available to participate in the conciliation, but Ms Leckie could not be contacted.

[4] The matter was subsequently allocated to my Chambers, and listed for a conference via video link from the Perth Fair Work Commission to the Collie Courthouse on 23 November 2017 (Video Conference).

[5] On 10 November 2017, Ms Leckie contacted Chambers to enquire about the purpose of the Video Conference, asserting that she had missed the telephone conciliation unintentionally.

[6] On 23 November 2017, CRVMC attended the Collie Courthouse to participate in the Video Conference. Ms Leckie did not attend the Video Conference, nor did she make any contact with Chambers to advise that she would not be in attendance. Ms Leckie was contacted twice via telephone shortly after the listed commencement time of the Video Conference, but could not be reached.

[7] On 28 November 2017, CRVMC filed with Chambers and served on Ms Leckie an application for the matter to be dismissed pursuant to section 399A of the FW Act on the grounds that Ms Leckie unreasonably failed to attend conferences conducted by the FWC (Dismissal Application).

[8] Section 399A of the FW 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.”

[9] Ms Leckie was invited by Chambers to make written submissions in relation to the Dismissal Application by 30 November 2017. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the matter.

[10] No further correspondence has been received from Ms Leckie as at the date of this decision, and no request was received from CRVMC to be heard orally.

[11] I am satisfied that Ms Leckie has unreasonably failed to attend conferences conducted by the FWC relating to her Application.

[12] On the application of CRVMC and in the exercise of my discretion under section 399A of the FW Act, the Application is dismissed. An order to this effect (PR598404) will be issued with this decision.

DEPUTY PRESIDENT

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