Elizabeth Bannon v F.C. Australia Pty Ltd

[2012] FWA 7414

[2012] FWA 7414

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Bannon
v
F.C. Australia Pty Ltd
(U2012/1069)

COMMISSIONER ROBERTS SYDNEY, 29 AUGUST 2012

Application for unfair dismissal remedy - lodged out of time - failure of applicant to comply with directions and attend hearing - application struck out.

[1] This decision concerns an application by Ms Bannon pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in relation to the alleged unfair termination of her employment by F.C. Australia Pty Ltd (the Company). The dismissal took effect on 4 April 2012. The application was lodged on 10 May 2012.

[2] The application was listed for conciliation by telephone on 30 May 2012 before a Fair Work Conciliator. The conciliation did not occur as Ms Bannon was unable to be contacted. On the same day, the Company filed an objection to the application on the ground that it was lodged outside the 14 day time limit prescribed by the Act. Ms Bannon’s application was then set down for hearing in Brisbane on 20 August 2012 to determine whether an extension of time should be granted. A notice of listing was issued on 27 June 2012 together with directions requiring the parties to file any submissions, witness statements or documentary evidence upon which they wished to rely in relation to the extension of time issue. Ms Bannon failed to comply with the directions and did not contact the Registry.

[3] Several unsuccessful attempts were made by FWA staff to contact Ms Bannon to ascertain whether she still wished to pursue her application. An email was then sent to the parties on 10 August 2012 by my associate, advising that the hearing listed on 20 August would proceed but the Company was relieved of its requirement to appear.

[4] The hearing on 20 August went ahead and Ms Bannon failed to attend. I made the following statement on transcript:

“Today the case of Ms Bannon's application for an extension of time in her application for relief against FC Australia Pty Ltd has been set down for hearing. My associate has gone to considerable effort to attempt to contact Ms Bannon with absolutely no result. The employer, the respondent, has therefore been excused from attendance today. The only action I can now take is to write to Ms Bannon informing her that unless I receive a compelling explanation for her non-attendance today, this matter will then be concluded by way of dismissal of her application on the grounds that any extension of time application means that the applicant in that extension of time application bears the onus to convince me that I should extend time.

In the absence of any written or oral submission from Ms Bannon, it will be impossible to exercise such discretion. Should Ms Bannon provide me with a compelling reason within seven days for her non-attendance and her non-filing of any documentation in relation to this matter, I will proceed to dismissal if she doesn't do so. If she does do so, I will set the matter down for further hearing. That being said, I am adjourned.”

[5] A letter was sent to Ms Bannon by my associate on 20 August 2012 in the following terms:

“Dear Ms Bannon

Re: U2012/1069 Bannon v FC Australia Pty Ltd

I refer to the above application filed on 10 May 2012.

The matter was listed for extension of time hearing in Brisbane on 20 August 2012. You failed to file an outline of submission and witness statement(s) in accordance with FWA’s directions issued on 27 June 2012. Numerous unsuccessful attempts were made to ascertain your intention to proceed with the application or not.

The proceedings on 20 August 2012 went ahead without your appearance. The respondent was relieved from its requirement to attend. The Commissioner noted on record that he would allow seven days for you to show compelling cause as to why your application should not be dismissed.

If you do not contact this office within 7 days or the Commissioner is not satisfied with any explanation for your failure to attend the hearing, your extension of time application will be dismissed.”

[6] No response has been received from Ms Bannon. On the basis that Ms Bannon did not comply with directions, failed to attend the hearing and has failed to provide any explanation, I have reached the conclusion that she no longer wishes to pursue her application. Pursuant to s.587(3) of the Act, I hereby dismiss and strike out Ms Bannon’s application for relief.

COMMISSIONER

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