Johaze Rindfleish v Hungry Jacks Pty Ltd

[2019] FWC 2963

[2019] FWC 2963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Johaze Rindfleish
v
Hungry Jacks Pty Ltd
(U2019/798)

COMMISSIONER CAMBRIDGE SYDNEY, 3 MAY 2019

Application for an unfair dismissal remedy.

[1] The Fair Work Commission (the Commission) issued Directions in this matter on 11 March 2019, which, inter alia, required that by 4:00 pm on 1 April 2019, the applicant, Johaze Rindfleish, was to file and serve material upon which her unfair dismissal claim could be prosecuted. The applicant did not provide material in accordance with this Direction.

[2] On 3 April 2019, the Commission sent a letter to the applicant which, inter alia, advised that the applicant’s non-compliance with the Directions of the Commission may result in the dismissal of her application for unfair dismissal remedy. The applicant was provided with 7 days to respond to the Commission in respect to her non-compliance with the Directions of the Commission.

[3] On 9 April 2019, the applicant sent an email to the Commission which provided material that was described as “the evidentiary material that I can provide for this matter.” The applicant’s email of 9 April apologised for the delay in the provision of material, and it incorporated 5 attachments which included images of mobile phone text messages, and an invitation from the respondent employer, (Hungry Jacks Pty Ltd)to attend an orientation session scheduled for 4:00pm on 15 June 2018, at the employer’s retail store located at Glendenning, NSW. The material provided by the applicant did not include any witness statement or an outline of submissions document as required by the Directions of the Commission issued on 11 March 2019.

[4] On any reasonable and objective assessment, the material that was provided by the applicant via the email of 9 April could not represent evidence or other material that would remotely establish sufficient basis upon which the claim for unfair dismissal remedy could be prosecuted. The absence of any witness statement or other elementary assertion document from the applicant renders the application to be without reasonable prospects of success.

[5] The matter was listed for Mention and Directions on 1 May 2019. Despite being properly advised of the proceedings, the applicant failed to attend or have some person appear on her behalf at the Mention and Directions held on 1 May. There has been no subsequent explanation provided for the non-attendance of the applicant or some other person appearing on her behalf, at the various proceedings held by the Commission on 11 March and 1 May 2019.

[6] The respondent employer has made an application under s. 399A of the Fair Work Act 2009, (the Act) to have the Commission dismiss the applicant’s unfair dismissal application.

[7] Therefore, in the circumstances, pursuant to ss. 399A and 587 of the Act, the application is dismissed because; the applicant has unreasonably failed to attend proceedings conducted by the Commission; and, the applicant unreasonably failed to comply with Directions of the Commission; and, the application has no reasonable prospects of success; and, the application has failed for want of prosecution.

[8] An Order [PR707851] dismissing the matter will be issued concurrently with this Decision.

COMMISSIONER

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