Dalia Mankarious v Aquanas Foods

[2016] FWC 3486

[2016] FWC 3486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dalia Mankarious
v
Aquanas Foods
(U2016/3799)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 30 MAY 2016

Application for relief from unfair dismissal.

[1] On 13 January 2016, Ms Dalia Mankarious made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (Cth). Ms Mankarious’ employment had been terminated by Aquanas Foods on 24 November 2015.

[2] Aquanas Foods raised a jurisdictional objection to the application on the grounds that Ms Mankarious had not been dismissed from her employment.

[3] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for jurisdiction and arbitration hearing.

[4] Ms Mankarious was directed to file an outline of submissions, and any witness statements and other documentary material she wished to rely on in support of her application by 4 April 2016.

[5] Ms Mankarious did not comply with this direction and a non-compliance hearing was held before Commissioner Bissett on 29 April 2016.

[6] Ms Mankarious did not attend the non-compliance hearing and Aquanas Foods made an oral application under s.399A of the Act that Ms Mankarious’ application be dismissed for failure to comply with the Commission’s directions.

[7] After considering Ms Mankarious’ submissions in respect of the s.399A application, the Commission issued a decision 1 and an order2 dismissing Aquanas Foods’ s.399A application.

[8] Amended directions were issued requiring Ms Mankarious to file an outline of submissions, any witness statements and other documentary material she wished to rely on in opposition to the jurisdictional objection by 17 May 2016.

[9] Ms Mankarious did not comply with this direction.

[10] Commission staff contacted Ms Mankarious on 18 and 23 May 2016 and voicemail messages were left requesting Ms Mankarious contact the Commission regarding the filing of her submissions and an email forwarded to her on 16 May 2016.

[11] An email was sent to the parties from the Commission on 25 May 2016 confirming that the hearing would proceed as scheduled.

[12] No response was received from Ms Mankarious to the voicemail messages or the emails.

[13] Ms Mankarious did not attend the jurisdiction and arbitration hearing on 30 May 2016. My Associate contacted Ms Mankarious at 10am on 30 May 2016 to confirm her attendance at the hearing and Ms Mankarious advised that she would not be attending the hearing that day but that she would attend on 31 May 2016.

[14] My Associate confirmed with Ms Mankarious that the matter was listed for jurisdiction and arbitration hearing on both 30 and 31 May 2016 and again sought Ms Mankarious’ instructions as to whether she would be attending. Ms Mankarious confirmed that she would not be attending on 30 May 2016 but that she would attend on 31 May 2016.

[15] The hearing proceeded on 30 May 2016 as scheduled and there was no appearance for Ms Mankarious.

[16] During the hearing, Aquanas Foods made an oral application, pursuant to section 399A of the Act, that the application be dismissed as Ms Mankarious had unreasonably failed to comply with the direction of the Commission and had failed to attend the hearing. I waived compliance with the Fair Work Commission Rules 2013 and accepted Aquanas Foods’ oral application.

[17] 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.

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

[19] After considering all of the material, and the events that had taken place in the lead up to the hearing, including Ms Mankarious’ failure to comply with directions or to attend the hearing, Ms Mankarious’ application for remedy from unfair dismissal is dismissed. An order 3 giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

Ms Mankarious did not appear.

R Hocking with C Tsakiris for Aquanas Foods.

Hearing details:

2016.

Melbourne:

May 30.

 1   [2016] FWC 2926.

 2   PR580188.

 3   PR580966.

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<Price code A, PR580967>