Carla Biskup v Dolci Firme Shoes

[2017] FWC 2532

[2017] FWC 2532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carla Biskup
v
Dolci Firme Shoes
(U2017/1626)

COMMISSIONER LEE MELBOURNE, 10 MAY 2017

Application for an unfair dismissal remedy - application dismissed.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Carla Biskup (the Applicant) claims that she was unfairly dismissed from his employment with Dolci Firme Shoes (the Respondent).

[2] On 15 February 2017, the Applicant made an application for remedy for unfair dismissal.

[3] On 24 February 2017, the Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application, raising jurisdictional objections that the Applicant was not dismissed and the Applicant’s employment does not meet the minimum employment period.

[4] The matter was listed for conciliation at 9:15am on Friday, 24 March 2017. The conciliation could not proceed as the Applicant claimed that she was moving house and was not available.

[5] On 31 March 2017 the matter was listed for Jurisdiction Hearing at 9.30am on 28 April 2017. A Notice of Listing was sent to parties which contained directions for the Respondent to file materials by no later than noon on Monday, 10 April 2017 and the Applicant to file an outline of argument: objections, statement of evidence and document list by no later than noon on Thursday, 20 April 2017. On 10 April 2017 the Respondent requested a two day extension to file materials. The request was granted and amended directions were issued that day for the Respondent to file by no later than noon on Wednesday, 12 April 2017 with a subsequent extension for the Applicant to file by no later than noon on Wednesday, 26 April 2017.

[6] The Respondent filed materials in accordance with the amended directions on 12 April 2017. The Applicant did not comply with these directions. The Fair Work Commission (the Commission) contacted the Applicant via telephone and left a voice message asking her to contact the Commission to advise if she still wished to pursue the application.

[7] On 27 April 2017 my chambers attempted to contact the Applicant by telephone without success and correspondence was sent to her noting that she had failed to comply with directions. The correspondence asked that she advise my chambers as a matter of urgency. No response was forthcoming.

[8] There was no appearance by the Applicant or the Respondent at the Commission for the Jurisdiction Hearing at 9:30am on Friday, 28 April 2017. My chambers attempted to contact the Applicant numerous times by telephone without success. The Respondent was contactable by telephone and indicated they were available to participate in the hearing by telephone. Attempts were made to contact the Applicant to connect her to the hearing by telephone without success. 

[9] Ultimately, the hearing was convened by telephone at 10:15am where the Respondent made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with directions of the Commission and failed to attend a hearing held by the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[10] On 28 April 2017, the Applicant was sent correspondence informing her of the Respondent’s section 399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, on Friday, 5 May 2017. The Applicant was advised that if she failed to file material, her application would be dismissed.

[11] The Applicant did not file any material with the Commission.

[12] 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.

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

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

[15] The power to dismiss an application if the non compliance was unreasonable is discretionary. The Applicant has not shown a willingness to prosecute her case. The Applicant failed to attend a hearing of the Commission, failed to comply with directions of the Commission and has not provided an explanation for her failure to comply with directions. In these circumstances, I will exercise my discretion under s.399A(1)(a) and (b) of the Act and dismiss the Applicant’s application.

[16] An order will be issued concurrently with this decision.

COMMISSIONER

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