Kim Shah v Kmart Chadstone

[2021] FWC 6686

[2021] FWC 6686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kim Shah
v
Kmart Chadstone
(U2021/8789)

COMMISSIONER MIRABELLA MELBOURNE, 24 DECEMBER 2021

Application for an unfair dismissal remedy – application dismissed pursuant to s. 399A of the Act.

[1] On 2 October 2021, Ms Kim Shah made an application to the Fair Work Commission (Commission) pursuant to s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (the application).

[2] The Commission conducted a conciliation in the matter on 25 November 2021. The matter did not resolve, so the application was allocated to me for consideration.

[3] The application was listed for mention using Microsoft Teams on 30 November 2021. However, the mention could not proceed as Ms Shah failed to attend. My Associate was unable to contact Ms Shah via email or telephone.

[4] That same day, I issued directions requiring that Ms Shah file and serve submissions and evidence by 14 December 2021 and that parties attend a member assisted conciliation (MAC) before Deputy President Gostencnik on 16 December 2021. My chambers also sent parties a notice listing the matter for determinative conference/hearing on 2 February 2022.

[5] No materials were filed by Ms Shah. On 15 December 2021, my Associate telephoned Ms Shah and advised her that she had failed to comply with directions and that her materials were late. Ms Shah advised that she would file the documents later that evening. Since that telephone conversation, the Commission has not received these documents, nor any further correspondence, from Ms Shah.

[6] My chambers sent an email to Ms Shah on the afternoon of 15 December 2021 reiterating that she had failed to comply with directions and requesting an explanation for her non-compliance by 17 December 2021. The email advised Ms Shah that her application may be dismissed if the Commission did not receive any response from her.

[7] On 16 December 2021, the MAC could not proceed because Ms Shah failed to attend, despite three attempts by Deputy President Gostencnik’s Associate to contact her via telephone.

[8] That same day, the Respondent, Kmart Chadstone (Kmart), applied to dismiss Ms Shah’s application pursuant to s. 399A of the Act. That afternoon, my chambers wrote to Ms Shah informing her that her application may be dismissed without further notice should she fail to respond by 22 December 2021. No response has been received.

[9] I am satisfied that Ms Shah has unreasonably failed to comply with the directions issued on 26 November 2021 and unreasonably failed to attend the mention on 25 November 2021 and the MAC before the Deputy President on 16 December 2021 in relation to her application. Ms Shah has taken no steps since at least 15 December 2021 to demonstrate that she wishes to pursue her application against Kmart.

[10] In the circumstances, I exercise my discretion pursuant to subsections 399A(1)(a) and (b) of the Act to dismiss Ms Shah’s application.

COMMISSIONER

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