Elisha Clarke v Bribie Discount Drug Store

[2013] FWC 4529

[2013] FWC 4529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elisha Clarke
v
Bribie Discount Drug Store
(U2013/6944)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 JULY 2013

Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 26 February 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms Elisha Clarke (the Applicant). The Applicant’s employment had been terminated by Bribie Discount Drug Store (the Respondent) on 7 March 2013.

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

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 6 May 2013.

[4] The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before Commissioner Jones on 17 May 2013.

[5] The Applicant and the Applicant’s Representative failed to attend the non compliance hearing. At the hearing, Commissioner Jones decided to send correspondence to the Applicant’s Representative and the Applicant which directed the Applicant to provide an explanation, within seven days, as to the Applicant’s failure to file material and attend the hearing.

[6] A file note from 17 May 2013 records that the Applicant contacted the Commission and advised that she had “repeatedly” tried contacting her representative without success. It is noted that the Applicant was advised that correspondence was being sent to both her and her representative. The Applicant advised that she would respond to the letter.

[7] The Applicant and her representative failed to respond to the letter.

[8] On 13 June 2013, the Respondent made an application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with a direction of the Commission in addition to failing to attend the conference and hearing.

[9] On 18 June 2013, the Applicant was sent correspondence informing her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 28 June 2013. The Applicant was advised that if she failed to comply with the direction, the application would be dismissed.

[10] The Applicant did not file any material with the Commission. The Commission received an email from the Applicant on 26 June 2013 but the email did not respond to the Respondent’s application.

[11] 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

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

[13] As the Applicant did not file any material in opposition to the application to dismiss and has failed to attend the hearing on 17 May 2013 without explanation, I have decided to determine the application on the papers.

[14] After considering all the material before me, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal pursuant to s.399A(1)(a) and (b) of the Act. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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