Dashree Sungkur v Woolworths Limited

[2015] FWC 5437

[2015] FWC 5437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dashree Sungkur
v
Woolworths Limited
(U2015/7629)

COMMISSIONER WILSON MELBOURNE, 10 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 15 May 2015, Ms Dashree Sungkur made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Sungkur’s employment had been terminated by Woolworths Limited on 26 April 2015.

[2] The matter was listed for conciliation on 3 June 2015, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Sungkur was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 20 July 2015.

[4] Ms Sungkur did not comply with this direction.

[5] On 28 July 2015, Woolworths Limited filed an objection to the application and sought the dismissal of Ms Sungkur’s application. Woolworths Limited based their objection on grounds which include failure to comply with directions.

[6] On 29 July 2015, Ms Sungkur was sent correspondence informing her of Woolworths Limited’s section 399A application. Ms Sungkur was directed to file submissions and other documentary material in respect of Woolworths Limited’s application by close of business, on 6 August 2015. Ms Sungkur was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Sungkur 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] I am satisfied that Woolworths Limited’s objection filed on 28 July 2015 is an application to have the matter dismissed for Ms Sungkur’s failure to comply with a direction.

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

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

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

COMMISSIONER

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