Kathleen Helen Allen v Cicerellos Employment Services T/A Bathers Beach House

[2018] FWC 763

[2018] FWC 763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kathleen Helen Allen
v
Cicerellos Employment Services T/A Bathers Beach House
(U2017/12549)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 24 November 2017, Ms Kathleen Allen made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Allen said she was notified of her dismissal on 3 November 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 13 December 2017, however it could not take place as Ms Allen could not be contacted.

[3] On 22 December 2017, parties were sent a Notice of Listing which advised the Conference/Hearing dates and also the Requirements to file material. Ms Allen was sent the Notice via post and email and was directed to file an Outline of Argument, Statement of Evidence and Document List by no later than noon on 15 January 2018.

[4] As no material had been filed, in the afternoon of 15 January 2018, the Fair Work Commission telephoned Ms Allen, however there was no answer and a message was left seeking a return call. The following day, another attempt to telephone Ms Allen was made and there was again no answer. After this phone call, an email was sent to Ms Allen which confirmed no material had been received. Ms Allen was advised if she would like to request an extension of time to file submissions, she should email the Commission and in the absence of such a response, the matter may be listed for a non-compliance hearing.

[5] On 17 January 2018, a further email was sent to Ms Allen which noted if there was no reply by 3.00pm that day, the matter would be listed for a non-compliance hearing on 19 January 2018. Later that day, another attempt to telephone Ms Allen was made, however there was no answer. Consequently, a Notice of Listing was sent to Ms Allen advising the non-compliance hearing would be taking place via telephone at 9.00am (WST) on 19 January 2018.

[6] The non-compliance hearing proceeded before Deputy President Colman on 19 January 2018. Ms Allen could not be contacted. Cicerellos Employment Services (Cicerellos) made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Allen had failed to comply with a direction of the Commission. Deputy President Colman waived compliance with the Fair Work Commission Rules 2013 and accepted Cicerellos’ oral application. Correspondence was then sent to Ms Allen, informing her of Cicerellos’ s.399A application. Ms Allen was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 29 January 2018. This correspondence was sent to Ms Allen via email and post.

[7] To date, Ms Allen has not filed 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] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Allen has failed to respond to the many attempts by the Commission to contact her. Apart from initially filing her application, Ms Allen has shown no willingness to prosecute her case and provided no explanation for either her failure to comply with Requirements or her non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Ms Allen’s application.

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

DEPUTY PRESIDENT

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