Brooke TemplemanvLangtrees Pty Ltd

[2019] FWC 2336

[2019] FWC 2336

FAIR WORK COMMISSION

DECISION

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

Brooke Templeman
v
Langtrees Pty Ltd
(U019/1080)

DEPUTY PRESIDENT BINET PERTH, 5 APRIL 2019

Application for an unfair dismissal remedy – failure to comply with directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 1 February 2019, Ms Brooke Templeman (Ms Templeman) 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 Langtrees Pty Ltd (Langtrees).

[2] On 28 February 2019, Langtrees lodged a Form F3 Employer Response to the Application. Langtrees’ response raised two jurisdictional objections to the Application. Firstly asserting that Langtrees is a small business for the purposes of the FW Act and that Ms Templeman’s duration of employment did not satisfy the minimum employment period for employees of small businesses. Secondly asserting that Ms Templeman had not been dismissed (Jurisdictional Objections).

[3] The Application was listed for a conciliation conference before Deputy President Binet on 14 March 2019, but Langtrees did not wish to proceed with the conciliation.

[4] In light of this the Application was listed for a Determinative Conference on 15 April 2019 to determine the Jurisdictional Objections.

[5] On 14 March 2019, directions outlining dates for the submission of materials by the parties were issued (Directions). The Directions required Ms Templeman to file and serve any submissions or evidence on which she sought to rely by 4pm Thursday 28 March 2019.

[6] On Friday 29 March 2019, Chambers emailed the parties noting that Ms Templeman had not filed the materials as required. Langtrees was invited to apply by 4pm on Monday 1 April 2019, for the Application to be dismissed. Ms Templeman was invited to make written submissions in response to the Dismissal Application by 4pm Tuesday 2 April 2019. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the Dismissal Application.

[7] On Thursday 4 April 2019, Langtrees filed with Chambers and served on Ms Templeman an application for the matter to be dismissed pursuant to inter alia section 399A of the FW Act on the grounds that Ms Templeman unreasonably failed to comply with a direction of the FWC when she failed to file her materials in accordance with the Directions (Dismissal Application).

[8] On the same day Chambers forwarded the Dismissal Application to Ms Templeman and informed her that she had until close of business on Friday 5 April 2019 to file submissions as to why the Application should not be dismissed.

[9] 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).

(1) 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.”

[10] As at close of business on Friday 5 April 2019 the FWC has not received any correspondence or written submissions from Ms Templeman in relation to the Directions or the Dismissal Application.

[11] On the application of Langtrees, and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An order to this effect [PR706659] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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