Karina Vinci v Landmark Operations Limited

[2016] FWC 4451

[2016] FWC 4451

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karina Vinci
v
Landmark Operations Limited
(U2016/5914)

COMMISSIONER CRIBB MELBOURNE, 5 JULY 2016

Application for relief from unfair dismissal - application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] An application, under section 394 of the Fair Work Act 2009 (the Act), was made by Ms Karina Vinci (the Applicant) on 4 April 2016. Ms Vinci’s employment ended with Landmark Operations Limited (the Respondent) on 9 March 2016.

[2] As the application was made outside of the statutory timeframe of 21 days after the dismissal took effect, the application was listed for an extension of time hearing on 15 June 2016.

[3] A letter, dated 13 May 2016, was sent to Ms Vinci by Deputy President Gooley advising of the hearing date and requesting the completion of an outline of argument, statement of evidence and document list by 23 May 2016. No documentation was received from Ms Vinci by the due date. During a telephone call between Ms Vinci and Chambers, on 30 May 2016, it was understood that Ms Vinci confirmed that she still wished to proceed with her application and wanted to file the required documentation. Ms Vinci was advised that she needed to file the required documentation as soon as possible together with an explanation as to why the documentation was being sent in late. The Commission has not received any material from Ms Vinci in relation to the extension of time hearing.

[4] In the week commencing 6 June 2016, Chambers attempted to call Ms Vinci several times and three voice messages were left.

[5] As a result of Ms Vinci failing to provide the documentation requested, on 16 June 2016, the Respondent made a verbal application, under section 399A of the Act, to have the application dismissed due to the Ms Vinci’s failure to comply with directions of the Commission.

[6] On 22 June 2016, correspondence was sent to Ms Vinci by the Commission, directing Ms Vinci to file submissions providing the reasons why she did not provide the documentation together with supporting evidence or other documentary material. In addition, Ms Vinci was requested to provide reasons why the Commission should not dismiss her application. This material was to be provided by no later than close of business on Wednesday 29 June 2016. The letter also advised Ms Vinci that failure to comply with this direction would result in her application being dismissed.

[7] Ms Vinci did not file any material with the Commission by the due date.

[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.

Note 1: For another 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.

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

[10] As Ms Vinci did not file any material in relation to her application for an extension of time or provide reasons as to why she had not provided any material or why the Commission should not dismiss her application, I have decided to determine the Respondent’s application to dismiss Ms Vinci’s application on the papers.

[11] After considering all of the material before the Commission, pursuant to section 399A(1)(b) of the Act, I have decided to dismiss Ms Vinci’s application for an unfair dismissal remedy.

[12] An order 1 giving effect to this decision will be issued today.

 1   PR582413

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<Price code A, PR582411>