Janice Kelly v Wreck Bay Aboriginal Community Council - [2014] FWC 6409

[2014] FWC 6409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janice Kelly
v
Wreck Bay Aboriginal Community Council
(U2014/10044)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 12 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 16 June 2014, Ms Janice Kelly made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Kelly’s employment had been terminated by Wreck Bay Aboriginal Community Council on 29 May 2014.

[2] The matter was the subject of conciliation, however, the matter was not resolved.

[3] Ms Kelly was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 29 August 2014.

[4] Ms Kelly did not comply with this direction.

[5] On 2 September 2014, the parties were sent correspondence from the Canberra Registry in the following terms:

“I refer to the above matter and to the directions that were issued by the Commission on 8 August 2014. I note that these directions required the applicant to file an outline of submissions and witness statements by 12:00pm on 29 August 2014. The applicant did not file these documents prior to the stipulated time. I have endeavoured to contact the applicant by phone a number of times this week to raise this issue with her. If the applicant wishes to continue with her application, the applicant or the applicant’s representative must contact the Commission immediately providing reasons as to why the applicant has not complied with the Commission’s Direction.

If the applicant wishes to discontinue the matter, she should do so by completing the Form F50 - Notice of Discontinuance, which can be obtained from the Commission’s website:

The respondent is not required to take any further action at this time or comply with existing directions.

If no further correspondence is received from the applicant by 5pm on Friday 5 September 2014 this matter will be listed for a non-compliance hearing.”

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

[7] The matter was listed for a non compliance hearing, by telephone, before me on 11 September 2014. Ms Kelly did not answer her mobile phone. My Associate left a message on Ms Kelly’s voicemail advising her of the nature of the phone call, asking her to contact my chambers by midday today, 12 September 2014 and advising that her application would be dismissed if we did not hear from her.

[8] In other developments, on 4 September 2014 Mr Mal Hansen, on behalf of the Respondent, responded to the abovementioned email of 2 September 2014 with an application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Kelly had failed to comply with the direction of the Fair Work Commission (the Commission).

[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

....

(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] I am satisfied that Wreck Bay Aboriginal Community Council’s objection filed on 4 September 2014 is an application to have the matter dismissed for Ms Kelly’s failure to comply with a direction and failure to attend the non compliance hearing as per the relevant provisions of s.399A(1).

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

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

[13] After considering all the material, Ms Kelly’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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