Laura Mandaliti v M Elezovic Pty Ltd T/A Raine and Horne Brunswick

[2016] FWC 4689

[2016] FWC 4689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Laura Mandaliti
v
M Elezovic Pty Ltd T/A Raine and Horne Brunswick
(U2016/1418)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 JULY 2016

Application for relief from unfair dismissal.

[1] On 28 March 2016, Ms Laura Mandaliti made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Mandaliti’s employment had been terminated by Raine and Horne Brunswick on 11 March 2016.

[2] The matter was listed for conciliation on 11 May 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Mandaliti was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 20 June 2016.

[4] Ms Mandaliti did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 24 June 2016.

[5] Ms Mandaliti did not attend the non compliance hearing. Raine and Horne made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Mandaliti had failed to comply with the direction of the Fair Work Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Raine and Horne’s oral application.

[6] On 24 June 2016, Ms Mandaliti was sent correspondence informing her of Raine and Horne’s section 399A application. Ms Mandaliti was directed to file submissions and other documentary material in respect of Raine and Horne’s application by close of business, on 1 July 2016. Ms Mandaliti was advised that if she failed to comply with this direction, her application would be dismissed.

[7] On 28 June 2016, Ms Mandaliti forwarded an email in response. In that email she stated that she had been at the hospital acting as her grandparent’s interpreter and that she had been admitted to hospital herself.

[8] On 4 July 2016, my chambers emailed Ms Mandaliti to provide her with a further opportunity to explain her non compliance:

“Dear Ms Mandaliti,

Your response has been provided to Deputy President Gooley, Panel Head, Termination of Employment.

You were required to file material explaining why you did not comply  with the directions to file material by 20 June 2016.

You have not provided any evidence, for example medical certificates, to support your claim that either your grandfather’s illness or your own hospitalisation, prevented you from lodging this material prior to 20 June 2016.

You are directed to file such evidence by noon on 8 July 2016.”

[9] On 12 July 2016, a telephone message was left for Ms Mandaliti to contact my chambers.

[10] Ms Mandaliti has not contacted or 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] Ms Mandaliti has not filed any evidence to support her claim that her grandfather’s illness prevented her from complying with directions. She has further not supplied evidence of her or her grandfather’s illness. Nor has she filed any material to support her application, despite being in receipt of the employer’s submissions since 3 May 2016.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Mandaliti has failed to respond to the many attempts by the Commission to contact her. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Mandaliti’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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