Jennifer Lopez v Kiki Hair Extensions

[2018] FWC 7573

[2018] FWC 7573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Lopez
v
Kiki Hair Extensions
(U2018/9010)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 31 August 2018, Ms Jennifer Lopez made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Lopez said her employment had been terminated by Kiki Hair Extensions (KHE) on 9 August 2018.

[2] The matter was initially scheduled for conciliation on 25 September 2018 but at the request of KHE, the conciliation was rescheduled to 2 October 2018. Notices of Listing were sent to the parties on each occasion a date for the proposed conciliation was set.

[3] The conciliation scheduled for 2 October 2018 could not proceed due to Ms Lopez’s unavailability. On 4 October 2018, Ms Lopez advised the Commission that she wished to attend a further conciliation. However, as KHE did not consent to a second conciliation attempt, the matter was referred for arbitration.

[4] On 2 November 2018, a Notice of Listing was sent to the parties scheduling the matter for a Jurisdiction (No Dismissal; Small Business Fair Dismissal Code) and Arbitration Conference/Hearing on 14-16 January 2019. Directions were also issued requiring KHE to file material addressing its jurisdictional objections by no later than noon on 19 November 2018, Ms Lopez to file material in response to KHE’s jurisdictional objections and in support of her application by no later than noon on 26 November 2018, and KHE to file any material in reply by no later than noon on 3 December 2018.

[5] KHE filed material addressing its jurisdictional objections on 19 November 2018.

[6] Ms Lopez did not file her material as directed by 26 November 2018. On 27 November 2018, the Commission attempted to telephone Ms Lopez in relation to her overdue material. Ms Lopez was unable to be reached and no voicemail message was able to be left.

[7] On 28 November 2018, the Commission sent email correspondence to Ms Lopez’s nominated email address warning that in the absence of her filing material or requesting an extension for the filing of her material by 12:00pm the next day, the matter would be listed for a non-compliance hearing.

[8] On 29 November 2018, an attempt to telephone Ms Lopez was unsuccessful as the call could not connect due to incoming call restrictions. A Notice of Listing was issued to the parties scheduling the matter for a non-compliance hearing.

[9] The non-compliance hearing proceeded before Commissioner Bissett on 30 November 2018. Ms Lopez could not be contacted. KHE made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Lopez’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted KHE’s oral application.

[10] Following the non-compliance hearing, correspondence was sent to Ms Lopez’s nominated email address advising her of KHE’s s.399A application. Ms Lopez was directed to file submissions and other documentary material in respect of the s.399A application by 4:00pm on 7 December 2018. The correspondence also noted that if the Commission did not receive a response, Ms Lopez’s application for relief from unfair dismissal may be dismissed.

[11] To date, Ms Lopez has not filed any material with the Commission.

[12] 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.

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

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Lopez has failed to respond to the numerous attempts made by the Commission to contact her. Apart from initially filing her application, Ms Lopez has shown no willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with the Commission’s directions or her failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Lopez’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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