Che-maree Karlson v Northern Brake & Clutch Pty Ltd T/A Northern Brake & Clutch

[2019] FWC 3193

[2019] FWC 3193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Che-maree Karlson
v
Northern Brake & Clutch Pty Ltd T/A Northern Brake & Clutch
(U2019/132)

COMMISSIONER WILSON MELBOURNE, 9 MAY 2019

Application for relief from unfair dismissal - s.399A application for non-compliance with an order - application granted.

[1] On 6 January 2019, Ms Che-maree Karlson made an application for unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). Ms Karlson’s employment had been terminated by Northern Brake & Clutch Pty Ltd T/A Northern Brake & Clutch (‘Northern Brake’) on 18 December 2018.

[2] The matter was listed for an initial conciliation on 14 February 2019, however was not successful. During the conciliation both parties expressed an interest in participating in a hearing outside of ordinary business hours, being on a Saturday. As a result the matter was listed for mention to determine timetabling of the matter.

[3] On Monday, 18 March 2019 a mention was held. Initially all parties were connected but connection problems with the Applicant led to her terminating the call. Three further calls were made to the Applicant however, no further contact was made. The mention continued with directions issued and a notice of listing issued for a hearing Saturday, 4 May 2019.

[4] Ms Karlson was directed to file an outline of submissions and any evidence she wished to rely on by close of business Friday, 5 April 2019.

[5] On 16 April 2019 an email was sent to Ms Karlson reminding her that her submissions were overdue and that she was required to file her materials immediately.

[6] On 17 April 2019 a telephone call was made to Ms Karlson regarding her overdue submissions. Ms Karlson initially indicated an intention to withdrawn her application but later sought an extension to file materials and continue with her application. Ms Karlson advised that she had encountered internet problems since March and had not received the directions. Ms Karlson was advised that the request would be reviewed by the Commission and determined shortly.

[7] The same day, a telephone call was made to Ms Karlson to discuss her extension for filing however, Ms Karlson did not answer. A voice message was left requesting a call back. No return call was made by Ms Karlson.

[8] A further follow up call was made on 18 April 2019 however, again Ms Karlson did not answer. A further voice message was left requesting a call back. No return call was made. By Ms Karlson.

[9] On 29 April 2019, an email was sent to parties confirming the Commission had yet to receive Ms Karlson’s submissions and had been unable to contact Ms Karlson. As such, the Commission was considering dismissing the application for no prospect of success.

[10] On 30 April 2019, the Respondent, Northern Brake made an application to have the application dismissed under s.399A of the Act due to Ms Karlson’s failure to comply with the Directions of the Commission. This was received by the Commission and forwarded to Ms Karlson by email and registered post the same day, with a follow up call to alert Ms Karlson to the application and to check her email immediately. Ms Karlson did not answer the call and a voice message was left.

[11] The following day, the Commission issued directions to Ms Karlson to file a response to the application within seven days otherwise the application would be determined of the papers. These directions were issued by email and registered post with a follow up call to Ms Karlson alerting her to the directions. Ms Karlson did not answer the call and therefore a voice message was left.

[12] No submissions were received from Ms Karlson.

[13] 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”.

[14] I am satisfied that Northern Brakes’s objection filed on 30 April 2019 is an application to have the matter dismissed for Ms Karlson’s failure to comply with a direction of the Commission.

[15] On 1 May 2019, Ms Karlson was sent correspondence by email and registered post informing her of the Respondents s.399A application. Ms Karlson was directed to file submissions providing reasons, evidence or other documentary material as to why the Commission should not dismiss the Application for Unfair Dismissal remedy pursuant to s.399A of the Act by close of business, on 8 May 2019. The correspondence stated that if Ms Karlson failed to comply with this direction, his application would be dismissed.

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

[17] In the absence of advice from Ms Karlson to the contrary, I find this failure to be unreasonable. Accordingly, there are no grounds upon which I would be persuaded to not exercise my discretion to dismiss Ms Karlson’s application. Her application for unfair dismissal remedy will be dismissed, and an Order will be issued in conjunction with this decision to that effect.

COMMISSIONER

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