Indira Lolic v Services Australia
[2024] FWC 2680
•26 SEPTEMBER 2024
| [2024] FWC 2680 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Indira Lolic
v
Services Australia
(U2024/8223)
| COMMISSIONER PERICA | MELBOURNE, 26 SEPTEMBER 2024 |
Application for an unfair dismissal remedy
On 16 July 2024, Mrs. Indira Lolic commenced a proceeding for an unfair dismissal remedy against Services Australia.
Procedural History
On 23 July 2024, a notice of listing was sent to the parties for a conciliation before a Fair Work Commission conciliator, which was listed for 11:45 AM on 16 August 2024 by Microsoft Teams.
On 16 August 2024, Mrs. Lolic did not attend that conciliation and did not respond to telephone calls from the Commission on that date. She did not subsequently explain her non-attendance.
The matter was allocated to my Chambers and on 2 September 2024, a notice of listing was issued for a mention hearing by Microsoft Teams at 11:00 AM on 6 September 2024.
On 4 September 2024 and on 6 September 2024 shortly before the mention, my Chambers attempted to contact Mrs. Lolic by telephone. On both occasions, there was no response and a voice message could not be left as the message bank was full.
On 6 September 2024, Mrs. Lolic failed to attend the mention hearing and did not provide any explanation.
I subsequently issued directions requiring Mrs. Lolic to file material in support of her application by 22 September 2024. No material was received.
I granted an extension to 12:00 PM on 24 September 2024, noting that a non-compliance hearing would be listed if she did not file any material. Despite the additional extension, the Commission received no material.
A notice of listing was issued on 24 September 2024 for a non-compliance hearing on 25 September 2024 by Microsoft Teams. Services Australia, later that day, filed submissions in support of an application under s 399A for the Commission to dismiss this application for want of prosecution by reason of her serial failure to attend conferences or meet directions of the Commission.
On 25 September 2024, shortly before the non-compliance hearing, my Chambers unsuccessfully attempted to contact Mrs. Lolic by telephone.
Relevant Law
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).
(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.
Consideration
Since filing the application, Mrs. Lolic has failed to attend any listed conciliation conference or hearing in this matter. She has not met any direction made by the Commission. She has not corresponded with the Commission in any capacity aside from filing her application. It is expected that if Mrs. Lolic regarded the circumstances of her dismissal justified commencing a legal proceeding she would participate and give it some priority. In this case, it is apparent she has not.
In those circumstances, the conduct of Mrs. Lolic demonstrates that she unreasonably failed to comply with directions and to attend conciliation conferences, or hearings in the matter. In those circumstances I dismiss this application for want of prosecution under s 399A(1).[1]
COMMISSIONER
[1] PR779681.
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