Bridget Walker v Ngaanyatjarra Council Aboriginal Corporation

[2017] FWC 5993

[2017] FWC 5993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bridget Walker
v
Ngaanyatjarra Council Aboriginal Corporation
(U2017/9191)

COMMISSIONER BISSETT MELBOURNE, 15 NOVEMBER 2017

Application for an unfair dismissal remedy – s.399A application to dismiss.

[1] On 24 August 2017 Ms Bridget Walker (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which she said she had been unfairly dismissed by Ngaanyatjarra Council Aboriginal Corporation (the Respondent).

[2] The matter was initially listed for Conciliation on 18 September 2017 however due to conciliator unavailability the matter was relisted for 22 September 2017. The Conciliation did not proceed as the Applicant could not be contacted. The Applicant made no attempt to contact the Commission and the matter was referred for Jurisdiction (Extension of Time) Conference/Hearing.

[3] Directions for the filing of submissions and witness evidence were sent to the Applicant by email on 13 October 2017. On 18 October 2017 an SMS message was sent to the Applicant reminding her that her submissions were due to be filed on Friday 20 October 2017.

[4] As no material had been received by 20 October 2017, the Commission attempted to contact the Applicant via her mobile telephone however a recorded message stated that the mobile number had been disconnected. An email was then sent to the Applicant regarding the outstanding submissions. The Applicant was advised that any request for an extension of time would need to be made in writing as soon as possible otherwise the matter would be listed for a Non-compliance hearing on Friday 27 October 2017.

[5] Further attempts to contact the applicant on 23, 24 and 25 October 2017 were made however these attempts were unsuccessful.

[6] As no material had been filed, the matter was listed for a Non-compliance hearing before Commissioner McKinnon on 27 October 2017. Despite attempts to contact the Applicant, the Applicant did not attend. The Respondent made an oral application, pursuant to s.399A of the FW Act, that the matter be dismissed as the Applicant had failed to comply with the direction of the Commission. Correspondence was sent to the Applicant, via express post, informing her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday, 10 November 2017.

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

[8] Section 399A of the FW Act provides:

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] Section 593(1) of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act.

[10] I am satisfied that the Applicant has failed to comply with a direction of the Commission relating to her application. That direction went to the date by which she was required to file and serve material in relation to her application for unfair dismissal. Further, I am satisfied that the Applicant failed to attend a Non-compliance Hearing in relation to her application and has failed to file any material in opposition to the application to dismiss.

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to the many attempts by the Commission to contact her. The Applicant has shown a lack of willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with directions or her non-attendance at the non-compliance hearing.
[12] I have therefore decided to exercise my discretion under s.399A(1)(b) and dismiss the Applicant’s s.394 application. An order 1 to this effect will be issued with this decision.

COMMISSIONER

 1   PR597754.

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