Jaimielee Paterson v Aminjarrinja Enterprises Pty Ltd

[2016] FWC 1962

[2016] FWC 1962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jaimielee Paterson
v
Aminjarrinja Enterprises Pty Ltd
(U2015/14178)

COMMISSIONER WILSON MELBOURNE, 31 MARCH 2016

Application for relief from unfair dismissal - application dismissed pursuant to section 399A of the Act.

[1] On 11 November 2015 Ms Jamielee Paterson made an application for unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Ms Paterson’s employment had been terminated by Aminjarrinja Enterprises on 20 October 2015.

[2] The matter was the subject of conciliation on 10 December 2015, however the matter was not resolved. Directions were issued by me on 22 December 2015 and the matter was listed for hearing on 23 February 2016, with the hearing to address both Ms Paterson’s application for an extension of time for the lodgement of her application and the merits of her unfair dismissal application.

[3] Ms Paterson was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by 22 January 2016.

[4] Ms Paterson did not comply with this direction. The Respondent then filed an application to dismiss Ms Paterson’s unfair dismissal application pursuant to s.399A(1)(b) of the Act on 17 February 2016.

[5] On 17 February 2016, my chambers issued written correspondence to both parties advising that the s.399A application would be dealt with at the hearing listed for 23 February 2016. Ms Paterson attended this hearing, as well as Ms Tammy Wong, solicitor for the Respondent. Arising from this hearing, Further Directions were issued by me on 23 February 2016. The Further Directions provided Ms Paterson with a further opportunity to file and serve written submissions both in support of her application for an extension of time for the lodgement of her application and the merits of her application. The Further Directions also required her to address the outstanding s.399A application and provide reasons for her failure to comply with the 22 December 2015 Directions. The Further Directions required compliance from Ms Paterson by 8 March 2016. Ms Paterson was advised that if she failed to comply with the Further Directions, her application may be dismissed.

[6] Ms Paterson did not file any material with the Commission.

[7] 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.

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

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

[10] Ms Paterson has provided no explanation for her failure to comply with directions of the Commission, and on two occasions. I find this failure to be unreasonable.

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Paterson has failed to respond to the directions of the Commission on two instances. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Paterson’s application for unfair dismissal remedy. An Order will be issued in conjunction with this decision to that effect.

COMMISSIONER

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