Katrina Pascual-Alberto v AGL Energy Limited T/A AGL

[2015] FWC 8612

[2015] FWC 8612

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katrina Pascual-Alberto
v
AGL Energy Limited T/A AGL
(U2015/10392)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 3 September 2015, Ms Katrina Pascual-Alberto made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Pascual-Alberto’s employment had been terminated by AGL Energy Limited on 25 August 2015.

[2] The matter was listed for conciliation on 30 October 2015, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Pascual-Alberto was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 23 November 2015.

[4] Ms Pascual-Alberto did not comply with the direction.

[5] On 23 November 2015, a Fair Work Commission staff member left a telephone message for Ms Pascual-Alberto to return their call regarding the submissions which had not been filed.

[6] On 24 November 2015, two further telephone messages were left with Ms Pascual-Alberto asking that she urgently telephone the Commission regarding her overdue submissions.

[7] Ms Pascual-Alberto did not return the Commission’s phone calls.

[8] On 25 November 2015, AGL filed an objection to the application and sought the dismissal of Ms Pascual-Alberto’s application. AGL based their objection on grounds which include failure to comply with directions.

[9] On 25 November 2015, Ms Pascual-Alberto was sent correspondence, via post and email, informing her of AGL’s section 399A application. Ms Pascual-Alberto was directed to file submissions and other documentary material in respect of AGL’s application by close of business, on 7 December 2015. Ms Pascual-Alberto was advised that if she failed to comply with this direction, her application would be dismissed.

[10] Ms Pascual-Alberto did not file any material with the Commission.

[11] 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.

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

[13] As Ms Pascual-Alberto did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] After considering all the material, Ms Pascual-Alberto’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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