Emma Devine v Australian Leisure and Hospitality Group Pty Limited T/A Sandbelt Hotel, South Road, Moorabbin

[2015] FWC 5942

[2015] FWC 5942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Devine
v
Australian Leisure and Hospitality Group Pty Limited T/A Sandbelt Hotel, South Road, Moorabbin
(U2015/3840)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 10 March 2015, Ms Emma Devine made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Devine’s employment had been terminated by Australian Leisure and Hospitality Group Pty Limited T/A Sandbelt Hotel, South Road, Moorabbin (Sandbelt Hotel) on 3 March 2015.

[2] The matter was listed for conciliation on 2 April 2015 and 30 April 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Devine was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 22 June 2015.

[4] On 27 June 2015, Ms Devine’s legal representative advised the matter had settled and requested the directions and hearing dates be vacated.

[5] On 30 June 2015, Ms Devine’s legal representative filed with the Commission a Form F53 indicating they no longer represented Ms Devine in this matter.

[6] On 23 July 2015, the Commission telephoned Ms Devine and left a voicemail message.

[7] On 23 July 2015, the Commission sent a SMS message to Ms Devine requesting she contact the Commission case manager as soon as possible.

[8] On 27 July 2015, the Commission forwarded a Notice of Listing to parties advising the matter was listed for telephone mention before Commissioner Wilson on 30 July 2015 at 9.00 am.

[9] On 30 July 2015, the Commission forwarded Directions to parties. Ms Devine was directed to:

“[2] The Applicant (Emma Devine) is Directed to file in the Commission, and serve on the Respondent, in writing and by no later than 5:00 PM on Monday, 10 August 2015:

• An explanation as to her failure to respond to repeated contact requests from the Fair Work Commission about this matter; and



• A commitment (or otherwise) to proceed to arbitration hearing of her unfair dismissal application.”

[10] On 11 August 2015, Sandbelt Hotel filed an objection to the application and sought the dismissal of Ms Devine’s application.

[11] On 11 August 2015, Ms Devine was sent correspondence informing her of Sandbelt Hotel’s section 399A application. Ms Devine was directed to file submissions and other documentary material in respect of Sandbelt Hotel’s application by close of business, on 20 August 2015. Ms Devine was advised that if she failed to comply with this direction, her application would be dismissed.

[12] Ms Devine did not file any material with the Commission.

[13] 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.”

[14] I am satisfied that Sandbelt Hotel’s objection filed on 11 August 2015 is an application to have the matter dismissed for Ms Devine’s failure to comply with a directions.

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

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

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

DEPUTY PRESIDENT

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