Julie Mews v JMC Fruit Sales Pty Ltd

[2022] FWC 946

[2022] FWC 946

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Julie Mews
v

JMC Fruit Sales Pty Ltd

(U2021/11642)

DEPUTY PRESIDENT BINET PERTH, 19 MAY 2022

Application for an unfair dismissal remedy

1. On 14 December 2021, Ms Julie Mews (Ms Mews) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by JMC Fruit Sales Pty Ltd (JMC).

1. On 7 February2022, JMC filed a Form F3 - Employer response to unfair dismissal application, raising the jurisdictional objection that Ms Mews was not dismissed (Jurisdictional Objection).

1. The Application was allocated to my Chambers for determination.

1. On 14 March 2022, the matter was listed for a conciliation with a Staff Conciliator. The conciliation was unable to proceed as neither party were contactable. The Staff Conciliator left a number of messages for each of the Parties asking for them to call her. At 3.30pm on the same day, a representative of JMC phoned back and apologised as he believed the conciliation was listed at another time.  Ms Mews failed to return the Staff Conciliator’s calls.

1. In light of this Directions were issued to parties on 8 April 2022 which required Ms Mews to file her materials in relation to the Jurisdictional Objection by 4pm (AWST) 15 April 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

1. Ms Mews failed to file any materials in accordance with the Directions.

1. On 19 April 2022, Chambers wrote to Ms Mews and reminded her that her materials in relation to the Jurisdictional Objection were overdue.

1. On 20 April 2022 JMC made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms Mews failed to comply with the Directions (Dismissal Application).

1. Ms Mews was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) on Friday 22 April 2022. Chambers advised Ms Mews that if she did not file submissions and evidence by 4pm (AWST) Friday 22 April 2022 the Application would be dismissed pursuant to section 399A of the FW Act.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Ms Mews by 4pm (AWST) Friday 22 April 2022 or since.

1. 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.”

1. Ms Mews failed to file the materials she was directed to file by the dates specified in the Directions. As at the date of this decision Ms Mews has still not filed any materials in support of her Application or in response to the Dismissal Application. Ms Mews has not sought an extension to file her materials in support of the Application or in response to the Dismissal Application. I am satisfied that Ms Mews has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of JMC and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

1. An Order to this effect was issued on 26 April 2022.[1]

DEPUTY PRESIDENT

[1] Print PR740625.

Printed by authority of the Commonwealth Government Printer

<PR740626>