Barden, Amy v Danny's Bar and Bistro Pty Ltd T/A Danny Murphy's Bar & Grill

[2016] FWC 2295

[2016] FWC 2295

FAIR WORK COMMISSION

DECISION

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

Barden, Amy
v
Danny’s Bar and Bistro Pty Ltd T/A Danny Murphy’s Bar & Grill
(U2015/9611)

DEPUTY PRESIDENT GOSTENCIK PERTH, 12 APRIL 2016

Application for relief from unfair dismissal; failure to comply with directions of the Commission; application dismissed.

[1] On 24 July 2015, Ms Barden (Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant’s employment had been terminated by Danny’s Bar and Bistro Pty Ltd t/a Danny Murphy’s Bar & Grill (Respondent) on 4 July 2015.

[2] On 7 September 2015, 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 5.00pm, on 10 February 2016.

[4] The Applicant failed to file any material with the Fair Work Commission (Commission).

[5] The matter was listed for a telephone non compliance hearing before me on 8 March 2016. Neither party attended the non compliance hearing. Consequently, I listed the matter for an attendance non compliance hearing in Perth on 15 March 2016. Both parties failed to attend the Commission without an explanation. The matter was re-listed for a non compliance hearing at the Commission on 12 April 2016. The Applicant was notified that failure to attend could result in her matter being dealt with in her absence and struck out due to non compliance with the Commission’s directions pursuant to s.399A of the Act.

[6] Neither the Applicant nor the Respondent attended the non compliance hearing.

[7] 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.”

[8] The Applicant has provided no explanation for her failure to comply with directions and for the failure to attend the various non compliance hearings to which earlier reference has been made. I am satisfied that her failure to comply is unreasonable.

[9] The power to dismiss an application if the non-compliance was unreasonable is discretionary.

[10] The Applicant has failed to respond to the many attempts by the Commission to contact her. She has failed to attend all three of the non compliance hearings. She has shown no willingness to pursue her unfair dismissal application. There are no compelling reasons of which I am aware that would suggest I should not exercise my discretion and dismiss the application. In those circumstances, I will dismiss the application. An order giving effect to this decision is separately issued in PR578974.

DEPUTY PRESIDENT

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<Price code A, PR578973>