Katherine Richards v MacDonnell Regional Council
[2023] FWC 853
•11 APRIL 2023
| [2023] FWC 853 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Katherine Richards
v
MacDonnell Regional Council
(U2023/426)
| COMMISSIONER RIORDAN | SYDNEY, 11 APRIL 2023 |
Application for an unfair dismissal remedy – application dismissed
On 17 January 2023, Ms Katherine Richards (the Applicant) lodged an application pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act), being an application for an unfair dismissal remedy against MacDonnell Regional Council (the Respondent).
The matter was set down for an initial Conference on 24 February 2023.
On 23 February 2023 at 8:43pm, the Applicant emailed as follows:
“Good evening,
I am unwell and will not be attending tomorrow, sorry for late notice.
Regards,
Katherine Richards”
The matter was then relisted for Conference on 2 March 2023.
On 1 March 2023 at 9:12am the Applicant emailed as follows:
“Good morning,
I am still unwell and will not be attending tomorrow.
Kind Regards,
Katherine Richards”
Following this email, on 1 March 2023 at 4:40pm my Chambers sent correspondence to the parties in the following terms:
“The Commissioner is in receipt of the below and advises tomorrow's conference will be adjourned.
A further date will not be listed at this time. Chambers will write to the Applicant in the coming days to check the Applicant's availability for proceeding with a conference.”
On 8 March 2023 my Chambers sent a follow up email enquiring whether the Applicant was well enough to participate in a conference.
On 22 March 2023 my Chambers sent correspondence to the Applicant in the following terms:
“Good morning Ms Richards,
It does not appear that you have provided a response to the below.
Can you please provide an update in this matter, including whether you now seek to proceed to a telephone conference or whether you seek to discontinue your application?
A response is kindly sought by midday on Friday, 24 March 2023.”
On 27 March 2023 the Respondent’s representative emailed my Chambers making an application to have the matter dismissed pursuant to s399A of the Act. The Respondent submitted that the Applicant had failed to appear at two conferences, had taken no steps to prosecute the application and had failed to respond to the Commission’s communications.
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.”
Following this application, my Chambers sent correspondence to the Applicant on 29 March 2023 in the following terms:
“Good morning Ms Richards,
The Respondent has made an application (as below) under s.399A of the Fair Work Act 2009, seeking that your application in the above matter be dismissed.
The Commissioner grants you 7 days to provide a written response to the Respondent’s dismissal application. Please provide any response by close of business Wednesday, 5 April 2023.
In the event of no response by you, your application will be dismissed.”
To date, no correspondence has been received from the Applicant. The Applicant has been given ample opportunity to respond.
Based on the Applicant’s failure to attend two conferences scheduled by the Commission, and her failure to respond to any of the numerous attempts by the Commission to make contact, I have decided to dismiss the application under sections 399A(1)(a) and (b) of the Act.
The application is dismissed.
I so Order.
COMMISSIONER
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