Caitlin Rooney v Automotive Beautician Centre P/L

[2016] FWC 2401

[2016] FWC 2401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Caitlin Rooney
v
Automotive Beautician Centre P/L
(U2016/4742)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 APRIL 2016

Application for relief from unfair dismissal.

[1] On 22 February 2016, Ms Caitlin Rooney made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Rooney’s employment had been terminated by Automotive Beautician Centre on 29 January 2016.

[2] Directions were issued and the matter was listed for an Extension of Time Conference/Hearing on 24 March 2016.

[3] Ms Rooney was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 11 March 2016

[4] On 15 March 2016, Automotive Beautician Centre filed an application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Rooney had failed to comply with the direction of the Fair Work Commission.

[5] On 16 March 2016, Ms Rooney was sent correspondence informing her of Automotive Beautician Centre’s section 399A application. Ms Rooney was directed to file submissions and other documentary material in respect of Automotive Beautician Centre’s application by close of business, on 29 March 2016. Ms Rooney was advised that if she failed to comply with this direction, her application would be dismissed.

[6] Ms Rooney did not file any material with the Commission.

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

[9] As Ms Rooney did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[10] As Ms Rooney has provided no explanation for her failure to comply with directions, I find that her failure was unreasonable.

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Rooney has failed to respond to the many attempts by the Commission to contact her. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Rooney’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR579127>