Jessica Self v Mal Bradley Hair

[2013] FWC 8330

[2013] FWC 8330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Self
v
Mal Bradley Hair
(U2013/9683)

COMMISSIONER WILSON MELBOURNE, 30 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 20 May 2013, Ms Jessica Self made an application for remedy for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Ms Self’s employment had been terminated by Mal Bradley Hair on 24 April 2013.

[2] The matter was the subject of conciliation on 20 June 2013 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Self was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 2 September 2013.

[4] Ms Self did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Gooley on 6 September 2013.

[5] On 24 September 2013, Mal Bradley Hair filed an objection to the application and sought the dismissal of Ms Self’s application. Mal Bradley Hair based their objection on grounds that Ms Self failed to comply with directions.

[6] On 24 September 2013, Ms Self was sent correspondence informing her of the Respondent’s s.399A application. Ms Self was directed to file submissions and other documentary material in respect of Mal Bradley Hair’s application by close of business, on 8 October 2013. Ms Self was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Self did not file any material with the Commission.

[8] 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.

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

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

[11] After considering all the material, Ms Self’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

[12] The employer’s application to dismiss the matter, filed 24 September 2013, also seeks that Ms Self pay the employer’s costs of defending the application thus far. I take this to be an application by the employer under s.400A of the Act for an order of costs to be made against a party to an unfair dismissal matter.

[13] The test in that provision is for the Commission to be satisfied that the Applicant, being the first party, caused those costs to be incurred because of “an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter”.

[14] If Mal Bradley Hair wishes to pursue this issue, it is to file submissions within 14 days of this decision outlining the basis of the application, otherwise I will determine the matter on the basis of the material filed to date.

COMMISSIONER

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