Joanne Winfield v Our Lady of Consolation Aged Care Services Ltd

[2015] FWC 7089

[2015] FWC 7089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Winfield
v
Our Lady Of Consolation Aged Care Services Ltd
(U2015/9280)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 OCTOBER 2015

Application for relief from unfair dismissal.

[1] On 10 July 2015, Ms Joanne Winfield made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Winfield’s employment had been terminated by Our Lady Of Consolation Aged Care Services Ltd on 21 June 2015.

[2] The matter was listed for conciliation on 31 July 2015 however it could not take place. Consequently directions were issued and the matter was listed for hearing.

[3] Ms Winfield’s was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 21 September 2015.

[4] On 15 September 2015 Ms Winfield sent an email in which she said:

“Thank you for email and information attached, unfortunately I cannot attend due to being unemployed and relying on social security benefits.  I'm unable to get legal representation. I have done nothing wrong.”

[5] On 29 September 2015 Ms Winfield advised Our Lady Of Consolation Aged Care Services Ltd that:

“I’m not paying any court fees as I don’t have the funds, nor will I be attending court. Sorry that this matter has caused douvh [sic] inconvenience but I didn’t do any thing [sic] wrong.”

[6] In response to the notice of listing, Ms Winfield did not comply with the direction and the matter was listed for a non compliance hearing before Commissioner Johns on 1 October 2015.

[7] Ms Winfield did not attend the non compliance hearing. Our Lady of Consolation Aged Care Services Ltd made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Winfield had failed to comply with the direction of the Fair Work Commission. Commissioner Johns waived compliance with the Fair Work Commission Rules 2013 and accepted Our Lady of Consolation Aged Care Services Ltd’s oral application.

[8] On 1 October 2015 Ms Winfield was sent correspondence informing her of Our Lady of Consolation Aged Care Services Ltd’s section 399A application. Ms Winfield was directed to file submissions and other documentary material in respect of Our Lady of Consolation Aged Care Services Ltd’s application by close of business, on 8 October 2015. Ms Winfield was advised that if she failed to comply with this direction, her application would be dismissed.

[9] Ms Winfield did not file any material with the Commission.

[10] 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.

[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 Winfield 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 Winfield’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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