Kacie Shelley v A-Civil Aust Pty Ltd

[2015] FWC 2858

[2015] FWC 2858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kacie Shelley
v
A-Civil Aust Pty Ltd
(U2014/14225)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 27 APRIL 2015

Application for relief from unfair dismissal.

[1] On 15 December 2014 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Ms Kacie Shelley (the Applicant) against A-Civil Aust Pty Ltd (the Respondent).

[2] The F2 form stated that the Applicant commenced employment on 5 February 2014. The dismissal was notified on 24 November 2014 and it took effect on the same day.

[3] The Applicant was represented by Mr A. Kelemen of Employee Assist.

[4] No F3 response was lodged by the Respondent.

[5] The Unfair Dismissals Team made numerous attempts to contact the named representatives of the Respondent. It appears that they denied that the Respondent was the employer of the Applicant and they asserted they were not authorised to represent the Respondent.

[6] In any event, no telephone conciliation took place and the matter was set down for hearing, in the roster for 15 April 2015. Appropriate directions for the filing of submissions and evidence were made.

[7] A very brief submission was filed by Mr Kelemen on 25 February 2015.

Commission Proceedings

[8] I listed the matter for a telephone programming conference on Wednesday 8 April 2015. The representatives that had been provided to the Commission were notified.

[9] My chambers had a discussion with Mr Nasser Matta and Mr Frank Ianns, both of whom denied that the Applicant was employed by the Respondent and stated that they were not authorised to represent the Respondent. We were advised that Ms Melissa Smith was the director and representative of the Respondent.

[10] The Respondent therefore was not represented at the teleconference. Mr Kelemen appeared and had very scant instructions. The Applicant did not appear.

[11] On 8 April 2015 I issued the following statement and directions.

“[1] This matter is listed for hearing in the Fair Work Commission (the Commission) at 80 William Street, East Sydney at 10.00 am on Wednesday, 15 April 2015.

[2] A telephone programming conference took place at 12.30 pm Wednesday, 8 April 2015. Mr Amnon Kelemen appeared on behalf of Ms Kacie Shelley (the Applicant), There was no appearance on behalf of A-Civil Aust Pty Ltd (the Respondent).

[3] However, contact was made with Mr Nasser Matta and Mr Frank Ianns, both of whom said that they did not represent the Respondent. I was advised that Ms Melissa Smith was the responsible director/officer of the Respondent. Accordingly, this statement is being sent to her in addition to those originally served.

[4] I note that the Respondent has not lodged an F3 response to the application. The Respondent has also not complied with the directions issued by the Commission to file submission and witness statements by Monday, 16 March 2015. The Applicant has filed a submission but there is no witness statement on the file.

[5] I now issue further directions and note that the Respondent must attend the hearing on 15 April. The matter will be dealt to finality on that day and a decision issued.

DIRECTIONS

1. The Applicant is to file and serve a witness statement by Close of Business Friday, 10 April 2015.

2. The Respondent, A-Civil Aust Pty Ltd, is directed to lodge with the Fair Work Commission by Close of Business Monday 13 April 2015 an outline of its submissions, witness statements and an F3 response.”

[12] The Statement and Directions were sent to Ms Smith at the email address provided, in addition to the previous notifications.

[13] On 10 April 2015 Mr Kelemen lodged an F54 “Notice of Representative Ceasing to Act” form. No contact was made by the Applicant.

[14] No appearance was made at the 15 April hearing by the Applicant despite numerous attempts by my chambers to contact her by telephone and email.

[15] The Respondent was represented by Ms Smith and Mr Ianns. They stated that the Applicant had been employed by MGA Labour Hire Pty Ltd. The Respondent had told that company that the Applicant did not have the skills to perform her secretarial/bookkeeping role. The Applicant continued to do work with other host employers. I am sceptical about this explanation but in the absence of any evidence or appearance from the Applicant, the matter cannot be taken further.

Application of s.399A

[16] After the hearing, after several further unsuccessful attempts at telephone contact the following was sent to the Applicant by mail and email on 15 April 2015:

“Dear Ms Shelley,

Re: U2014/14225 - Kacie Shelley v A-Civil Aust Pty Ltd
The above matter was heard in the Commission on Wednesday, 15 April as per the long standing listing.

You did not appear despite attempts by these chambers to contact you by telephone and email.

Representatives of A-Civil Aust Pty Ltd did appear.

I am writing to give you a final opportunity to make a submission. Please forward any submission you wish to make by COB Wednesday 22 April to these chambers. The matter will then be decided by the Commission on the basis of the submissions and evidence available to the Commission.

Finally, I draw to your attention s.399A of the Fair Work Act 2009 which is 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.”

I look forward to your response.”

[17] No response has been received.

[18] In the circumstances, it is appropriate to dismiss the s.394 application pursuant to s.399A.

[19] An order will accompany this decision.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant;

M. Smith with F. Ianns for the Respondent.

Hearing details:

2015

Sydney:

April 15.

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