Chelsea McCormick v Australia Leisure & Hospitality Group Pty Limited t/as ALH Group

[2015] FWC 6680

[2015] FWC 6680

FAIR WORK COMMISSION

DECISION

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

Chelsea McCormick
v
Australia Leisure & Hospitality Group Pty Limited t/as ALH Group
(U2015/9486)

DEPUTY PRESIDENT SAMS SYDNEY, 29 SEPTEMBER 2015

Application for relief from unfair dismissal – casual employee – failure to attend proceedings or to comply with directions – no explanation – warning that application may be dismissed – no response – application dismissed pursuant to s 399A of the Act.

[1] This is an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) lodged by Ms Chelsea McCormick (the ‘applicant’) on 20 July 2015. Ms McCormick has alleged that she was unfairly dismissed by Australia Leisure & Hospitality Group Pty Limited t/as ALH Group (the ‘respondent’) on 13 July 2015. The applicant had been employed as a casual Bar Attendant from 31 October 2014 and she was dismissed for consistent poor punctuality and attendance.

[2] The respondent asserts that as the applicant was a casual employee and because she was not employed on a regular and systematic basis, she had not met the minimum employment period, as set out in s 384 of the Act. It follows that the applicant is not a person protected from unfair dismissal, within the meaning of s 382 of the Act. It objects to the application on this basis.

[3] The matter was listed for telephone conciliation on Thursday 13 August 2015. However, as the matter was not able to be settled, directions were issued and the matter was listed for jurisdictional hearing in Coffs Harbour on 22 September 2015. There was no reason to believe that the applicant would not attend the proceeding on that day or that she was unaware of the listing notice.

[4] At the hearing in Coffs Harbour, Mr A See of Counsel appeared with permission with Mr T Wiedemann of the respondent by videolink from Brisbane. As there was no appearance by, or on behalf of the applicant, attempts were made to contact her on the two telephone numbers provided in her originating application. These proved unsuccessful. I note further that the applicant had failed to comply with the directions issued by the Commission on 27 August 2015. Unsurprisingly, in these circumstances, Mr See made an application that the unfair dismissal application be dismissed.

[5] On 24 September 2015, I directed my Associate to write to the applicant advising her that an application had been made by the respondent to dismiss her unfair dismissal application. The applicant was directed that, should she wish to pursue her unfair dismissal application, she was to, by no later than close of business, Friday 25 September 2015:

• provide proper and cogent reasons for her failure to attend the hearing; and



• provide proper and cogent reasons for her failure to comply with the directions of the Commission.

The applicant was warned that a failure to respond to these directions, risked her application being dismissed, pursuant to s 399A of the Act. The applicant did not respond to this correspondence and there has been no communication from her up to the date of this decision.

[6] Section 399A of the Act sets out circumstances in which the Commission may dismiss an unfair dismissal application and is expressed as follows:

(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

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.

[7] In light of the application made by Mr See during the hearing on 22 September 2015 and the failure of the applicant to respond to the Commission’s communications, I am satisfied that:

• the applicant has unreasonably failed to attend a hearing held by the Commission in relation to her application;



• the applicant has unreasonably failed to comply with a direction of the Commission in relation to her application; and



• the applicant was notified of the hearing using the same email address as she had earlier provided to the Commission.

Given these circumstances, it is appropriate for the Commission to exercise its power to dismiss this application. An order giving effect to this dismissal will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant.

Mr A See with Mr T Wiedemann for the respondent

Hearing details:

2015

Coffs Harbour:

22 September.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR572361>