Grace Martino v Roof Safety Solutions Pty Ltd

[2021] FWC 3582

[2021] FWC 3582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Grace Martino
v
Roof Safety Solutions Pty Ltd
(U2021/3090)

DEPUTY PRESIDENT BINET PERTH, 28 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 13 April 2021, Ms Grace Martino (Ms Martino) made an application under s 394 of the Fair Work Act 2009 (Cth) claiming that she had been unfairly dismissed from Roof Safety Solutions Pty Ltd (Roof Safety Solutions).

[2] On 15 April 2021, Roof Safety Solutions filed a Form F3 - Employer response to unfair dismissal application, disputing that the dismissal was unfair.

[3] The Application was listed for a telephone conciliation with a staff conciliator on 4 May 2021. At the listed time the staff conciliator called Ms Martino four times with no answer. The conciliation therefore did not proceed.

[4] Ms Martino did not respond to subsequent correspondence from the staff conciliator. The matter was therefore allocated to my Chambers on 7 May 2021.

[5] Directions were issued to parties on 14 April 2021 which required Ms Martino to file her materials in relation to the merit of the Application by 4pm on 27 May 021. (Directions). The parties were advised that compliance with the Directions was mandatory and a failure to comply may disadvantage the party concerned.

[6] On 26 May 2021, Ms Martino emailed Chambers requesting an extension to file her materials.

[7] At 11.39am on 27 May 2021 Chambers sent an email to Ms Martino informing her that she would be required to provide evidence in support of her adjournment request.

[8] No materials were filed by Ms Martino by 4pm on 27 May 2021 in accordance with the Directions. Nor did she file any evidence in support of her adjournment application.

[9] At 5.26pm on 27 May 2021, Chambers sent an email to Ms Martino noting that she had not filed her materials in accordance with the Directions and reminding her that if she wished to seek an extension to file her materials she would need to provide evidence in support of her extension by 4pm 28 May 2021.

[10] No materials were filed by Ms Martino by 4pm 28 May 2021 in accordance with the Directions. Nor did she file any evidence in support of her adjournment application.

[11] On 8 June 2021 Chambers remined Ms Martino again that her materials were overdue and should be filed urgently.

[12] On 8 June 2021 Roof Safety Solutions sent an email to Chambers attaching an application pursuant to section 399A of the FW Act (Dismissal Application). Roof Safety Solutions submitted that the Application should be dismissed pursuant to section 399A on the grounds that Ms Martino unreasonably failed to comply with a direction of the Commission when she failed to file her materials in accordance with the Directions.

[13] On 9 June 2021, Ms McKeon was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm 11 June 2021. 

[14] No materials were filed by Ms Martino by 4pm 11 June 2021 in accordance with the Directions. Nor did she file any evidence in support of her adjournment application.

[15] Section 399A of the FW Act provides:

“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 other 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.”

[16] Ms Martino failed to file the materials she was directed to file by the dates specified in the Directions. As at the date of this decision Ms Martino has still not filed any materials in support of her Application nor any materials in opposition to the Dismissal Application. I am satisfied that Ms Martino has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Roof Safety Solutions and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

[17] An order to this effect will be issued with this decision. 1

DEPUTY PRESIDENT

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