Grace Holland v Winemaking Tasmania

[2016] FWC 90

[2016] FWC 90

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Grace Holland
v
Winemaking Tasmania
(U2015/10738)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 5 August 2015, Ms Grace Holland made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Holland’s employment had been terminated by Winemaking Tasmania on 15 July 2015.

[2] Directions were issued and the matter was listed for hearing on 5 October 2015.

[3] Ms Holland was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 21 September 2015.

[4] On 21 September 2015, Ms Holland’s representative requested an adjournment of the hearing date and amended directions. A further period of time was granted and Ms Holland was required to file her material by 5 November 2015.

[5] Ms Holland did not comply with this direction.

[6] On 8 December 2015, Winemaking Tasmania filed an objection to the application and sought the dismissal of Ms Holland’s application under s.399A of the Act. Winemaking Tasmania based their objection on grounds which included Ms Holland’s failure to comply with directions.

[7] On 10 December 2015, Ms Holland was sent correspondence informing her of Winemaking Tasmania’s section 399A application. Ms Holland was directed to file submissions and other documentary material in respect of Winemaking Tasmania’s application by close of business, on 21 December 2015. Ms Holland was advised that if she failed to comply with this direction, her application would be dismissed.

[8] Ms Holland did not file any material. I noted that Ms Holland’s representative had previously advised that Ms Holland was unwell. As a consequence I held a telephone conference of the parties. Ms Holland was unable to attend but her representative attended and advised that Ms Holland was not able to proceed with her claim. He accepted that the matter should be dismissed.

[9] 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.

[10] After considering all the material, Ms Holland’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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