Kylie Doughty v Cater Care Australia Pty Ltd T/A Cater Care Australia Pty Ltd

[2019] FWC 2092

[2019] FWC 2092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kylie Doughty
v
Cater Care Australia Pty Ltd T/A Cater Care Australia Pty Ltd
(U2019/667)

DEPUTY PRESIDENT BINET PERTH, 9 APRIL 2019

Application for an unfair dismissal remedy. – application dismissed – failure to comply with directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 22 January 2019, Ms Kylie Doughty (Ms Doughty) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Cater Care Australia Pty Ltd (CCA).

[2] On 4 February 2019, CCA filed a response (Response) to Ms Doughty’s Application asserting that she was not unfairly dismissed.

[3] On 25 February 2019, the parties participated in a telephone conciliation before a FWC staff conciliator but were unable to resolve the issues in dispute.

[4] The Application was subsequently allocated to me and listed for a conciliation conference on 13 March 2019.

[5] On 11 March 2019 CCA informed the FWC that the matter had been settled with Ms Doughty. The FWC notified the parties that the conference listed on 13 March 2019 would proceed unless Ms Doughty confirmed that the Application was resolved by filing a Form 50 – Notice of Discontinuance

[6] On 13 March 2019 Ms Doughty advised the FWC she was unwell and unable to attend the conference. Ms Doughty was directed to provide evidence to the FWC that she was medically unfit to attend the conference within 48 hours. She did so within the required timeframe.

[7] In light of the cancellation of the conciliation conference the matter was listed for hearing and determination. On 15 March 2019 the parties were issued with directions which required Ms Doughty to file and serve by 4pm on Thursday 21 March 2019 an outline of submissions and any evidence which she relied on in support of her Application (Directions).

[8] Ms Doughty did not file any materials by the filing date specified in the Directions.

[9] On 22 March 2019 the FWC invited CCA to have the Application dismissed pursuant to section 399A of the FW Act. Ms Doughty was invited to make submissions providing reasons why FWC should not dismiss her application and evidence or other documentary material supporting those reasons by 4pm on Tuesday 26 March 2019. Ms Doughty was advised that if she did not file her submissions and evidence as to why her Application should not be dismissed, her Application would be dismissed.

[10] Ms Doughty sent an email on 22 March 2019 stating that:

"(sic) Rather confused I thought the hearing had been moved till the 4th April? "

[11] An email was sent to Ms Doughty referring her back to the Directions and the due dates in which Ms Doughty was to file by.

[12] Section 399A of the FW Act provides:

“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).

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.”

[13] On 25 March 2019, CCA filed with Chambers and served on Ms Doughty an application for the matter to be dismissed pursuant to section 399A of the FW Act (Dismissal Application).

[14] CCA submitted that the Application should be dismissed pursuant to section 399A on the grounds that Ms Doughty unreasonably failed to comply with a direction of the FWC when she failed to file her materials in accordance with the Directions and failed to attend a conference conducted by the FWC in relation to the Application and failed to discontinue the Application after a settlement agreement had been concluded.

[15] On the morning of 25 March 2019 an email was sent to the parties advising Ms Doughty that she had until 4 pm on 26 March 2019 to file submissions as to why the Application should not be dismissed.

[16] To date the FWC has not received any correspondence, written submissions or evidence from Ms Doughty with respect to her failure to file such materials in accordance with the Directions. I am therefore satisfied that Ms Doughty has failed to comply with a direction of the FW Commission in relation to her Application.

[17] On the application of CCA and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR706360] will be issued with this decision.

DEPUTY PRESIDENT

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