Catherine Duffy v RLW Contracting Pty Ltd T/A RLW Group

[2014] FWC 2220

[2014] FWC 2220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Catherine Duffy
v
RLW Contracting Pty Ltd T/A RLW Group
(U2013/15796)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 APRIL 2014

Application for relief from unfair dismissal dismissed.

[1] On 13 November 2013, Ms Catherine Duffy made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Duffy’s employment had been terminated by RLW Contracting Pty Ltd T/A RLW Group (RLW) on 28 October 2013.

[2] The matter was listed for conciliation on 3 and 13 January 2014 however they could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Duffy was directed to file an outline of submissions, witness statements and other documentary material she wished to rely on by noon, on 3 March 2014.

[4] Ms Duffy did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 7 March 2014.

[5] Ms Duffy did not attend the non compliance hearing. RLW made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Duffy had failed to comply with the direction of the Fair Work Commission (the Commission). Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted RLW’s oral application.

[6] On 7 March 2014, Ms Duffy was sent correspondence informing her of the Respondent’s s.399A application. Ms Duffy was directed to file submissions and other documentary material in respect of RLW’s application by close of business, on 21 March 2014. Ms Duffy was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Duffy did not file any material with the Commission.

[8] 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.

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

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

[11] After considering all the material, Ms Duffy’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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