Jessica King v Baptistcare

[2021] FWC 322

[2021] FWC 322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica King
v
Baptistcare
(U2020/15373)

DEPUTY PRESIDENT BINET PERTH, 29 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 30 November 2020, Ms Jessica King (Ms King) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging she was unfairly dismissed by Baptistcare.

[2] On 15 December 2020, Baptistcare filed a Form F3 - Employer response to unfair dismissal application, asserting that Ms King was dismissed as a result of serious misconduct.

[3] The matter was listed for a staff conciliation on 16 December 2020 but the dispute between the parties was not resolved.

[4] The application was then allocated to my Chambers for determination.

[5] On 4 January 2021, the parties were issued with Directions which required Ms King to file and serve on Baptistcare by 4pm on 14 January 2021 submissions and evidence in relation to the Application. The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[6] Ms King did not file any materials in accordance with the Directions.

[7] On 15 January 2021 Chambers sent an email to the parties warning that if Ms King did not file any materials Baptistcare may seek to have the Application dismissed pursuant to section 399A of the FW Act.

[8] On 15 January 2021, Baptistcare filed with Chambers and served on Ms King an application for the matter to be dismissed pursuant to section 399A of the FW Act. Baptistcare submitted that the Application should be dismissed pursuant to section 399A on the grounds that Ms King unreasonably failed to comply with a direction of the Commission when she failed to file her materials in accordance with the Directions (Dismissal Application).

[9] On 15 January 2021, Ms King was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on 19 January 2021.

[10] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by 19 January 2021 or by the date of this Decision.

[11] Section 399A of the FW 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 other 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.”

[12] Ms King failed to file the materials she was directed to file by the dates specified in the Directions, or at all. Ms King failed to seek an extension to file her materials. As at the date of this decision Ms King has still not filed any materials in support of her Application or in opposition to the Dismissal Application. I am satisfied that Ms King has unreasonably failed to comply with directions of the FWC relating to this Application.

[13] On application of Baptistcare and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR726365] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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