Karen Cowling v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Centacare

[2014] FWC 3941

[2014] FWC 3941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Cowling
v
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Centacare
(U2014/5009)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 JUNE 2014

Application for relief from unfair dismissal.

[1] On 25 February 2014, Ms Karen Cowling made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Cowling’s employment had been terminated by the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Centacare (Centacare) on 7 February 2014.

[2] The matter was listed for conciliation on 4 April 2014 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Cowling was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 26 May 2014.

[4] Ms Cowling did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 30 May 2014.

[5] On 29 May 2014, Centacare filed an objection to the application and sought the dismissal of Ms Cowling’s application. Centacare based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the non compliance hearing.

[6] On 2 June 2014, Ms Cowling was sent correspondence informing her of Centacare’s section 399A application. Ms Cowling was directed to file submissions and other documentary material in respect of Centacare’s application by close of business, on 9 June 2014. Ms Cowling was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Cowling 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] I am satisfied that Centacare’s objection filed on 29 May 2014 is an application to have the matter dismissed for Ms Cowling’s failure to comply with a direction and failure to attend the non compliance hearing.

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

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

[12] After considering all the material, Ms Cowling’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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