Harmony Brooks v Anglican Care

[2023] FWC 2509

[2023] FWC 2509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Harmony Brooks
v

Anglican Care

(U2023/6729)

DEPUTY PRESIDENT ROBERTS SYDNEY, 28 SEPTEMBER 2023

Application for unfair dismissal remedy; dismissed.

1. On 24 July 2023, Ms. Harmony Brooks (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (application). According to the application, the Applicant was employed by Anglican Care (Respondent) from 9 August 2022 until her employment was terminated by the Respondent on 18 July 2023.

1. The Respondent filed a response to the application on 4 August 2023.

1. On 21 August 2023 the matter was listed for a conciliation conference before a member of the Fair Work Commission’s conciliation staff. The Applicant did not attend that conference and the conference was not able to proceed.

1. The matter was allocated to my Chambers and listed for a directions hearing and a potential member assisted conciliation conference on 31 August 2023. The Respondent attended the conference, but the Applicant did not. Directions were issued on that day for the filing of material and the matter was listed to be heard on 10 October 2023. According to the first direction made on that day, the Applicant was required to file any material on which they intended to rely by no later than 14 September 2023. No material was received from the Applicant by that date.

1. The hearing date was subsequently rescheduled to 11 October 2023.

1. On 15 September 2023 my Associate wrote to the parties noting that the Commission was not in receipt of any material from the Applicant. The Applicant was directed to provide material by 4pm on 18 September 2023.

1. On the same date, the Respondent filed an application under s.399A of the FW Act seeking to have the application dismissed.

1. No response was received from the Applicant to the Commission’s direction of 15 September 2023.

2. On 18 September I provided the Applicant with an opportunity to file any material they wished to rely upon in relation to the application by the Respondent on or before 20 September 2023. The Applicant was put on notice that in the absence of a reply, the Commission would deal with the Respondent’s application on the basis of the material at hand. There has been no response from the Applicant to that correspondence.

Relevant Legislation

Section 399A of the 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 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).

1. The Applicant was required by the Commission’s directions of 31 August 2023 and 15 September 2023 to file material by 14 and 18 September 2023 respectively. The Applicant has failed to comply with those directions. There has been no explanation from the Applicant as to why there has been a failure to comply with the directions and no request for an extension of time in either case.

1. In the circumstances I am satisfied that the Applicant has unreasonably failed to comply with directions of the Commission relating to an application under Division 4 of Part 3-2 of the FW Act.

1. Pursuant to s.399A(1)(b) of the FW Act, I dismiss the Applicant’s application in matter U2023/6729. An order to this effect will accompany this decision.

DEPUTY PRESIDENT

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