Kristin Luxford v BOQ

[2018] FWC 7577

[2018] FWC 7577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristin Luxford
v
BOQ
(U2018/9293)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 10 September 2018, Miss Kristin Luxford made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Luxford said her employment had been terminated by BOQ on 24 August 2018.

[2] The matter was listed for conciliation on 15 October 2018, which did not resolve. Later the same day, the Commission conciliator emailed the parties requesting Miss Luxford to advise whether she wished to proceed to arbitration.

[3] As no response was received from Miss Luxford, the Commission conciliator attempted to telephone her on each day of 23-25 October 2018. Miss Luxford was unable to be contacted on all three occasions. Correspondence was emailed to the parties on 24 and 25 October 2018 advising that if no response was received from Miss Luxford, the matter would be referred for arbitration.

[4] On 2 November 2018, the Commission issued a Notice of Listing to the parties scheduling the matter for Arbitration Conference/Hearing on 14-16 January 2019. Directions were also issued requiring Miss Luxford file and serve her material by no later than noon on 26 November 2018 and BOQ to file and serve its reply material by no later than noon on 17 December 2018.

[5] No material was received from Miss Luxford on 26 November 2018.

[6] On 28 November 2018, the Commission attempted to telephone Miss Luxford in relation to her overdue material. As she was unable to be reached, a voicemail message was left. Following this, an email was sent to Miss Luxford warning that if she did not file her material or make a request for an extension to file her material by 12:00pm the next day, the matter would be listed for a non-compliance hearing.

[7] On the afternoon of 29 November 2018, the Commission attempted to telephone Miss Luxford but was unable to reach her. A voicemail message was again left. Following this, a Notice of Listing was sent to the parties scheduling the matter for a non-compliance hearing.

[8] The non-compliance hearing proceeded before Commissioner Bissett on 30 November 2018. Miss Luxford could not be contacted. BOQ made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Miss Luxford’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted BOQ’s oral application.

[9] Following the non-compliance hearing, correspondence was sent to Miss Luxford’s nominated email address advising her of BOQ’s s.399A application. Miss Luxford was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 7 December 2018. The correspondence also noted that if the Commission did not receive a response, Miss Luxford’s application for relief from unfair dismissal would be dismissed.

[10] To date, Miss Luxford has not filed 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 Miss Luxford did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Luxford has failed to respond to the numerous attempts made by the Commission to contact her. Apart from initially filing her application and attending the conciliation on 15 October 2018, Miss Luxford has shown no willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with the Commission’s directions or her failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Miss Luxford’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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