Leanne Farley v Bendigo Regional YMCA

[2017] FWC 3164

[2017] FWC 3164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanne Farley
v
Bendigo Regional YMCA
(U2017/2035)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 24 February 2017, Ms Leanne Farley made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Farley said she was notified of her dismissal on 23 February 2017 and it took effect on 24 February 2017.

[2] The matter was listed for conciliation on 31 March 2017, however, due to conciliator unavailability, the matter was re-scheduled to 18 April 2017 with the agreement of Ms Farley and Bendigo Regional YMCA.

[3] Following the conciliation on 18 April 2017, the parties requested that the conciliator hold the file until close of business Friday 21 April 2017 to allow advice to be taken.

[4] On 2 May 2017, following several attempts to contact Ms Farley without success, the conciliator issued directions for the filing of material ahead of a hearing. Ms Farley was directed to file an outline of submissions, any witness statements and documentary material by noon, Monday 22 May 2017.

[5] On 17 May 2017, an SMS message was sent to Ms Farley reminding her that her material was due to be filed on the coming Monday.

[6] As Ms Farley did not file her material by the due date, in the afternoon of 22 May 2017, an attempt was made to contact Ms Farley via her mobile telephone, however this was unsuccessful and no voicemail was able to be left. The Fair Work Commission then sent a further SMS message, reminding her that her material was due at noon that day and that she should contact the case manager to discuss the matter further.

[7] On 23 May 2017, further attempts to telephone Ms Farley were made and a voicemail was left on her landline phone number requesting an urgent return call. The following day, a voicemail was left on Ms Farley’s mobile telephone requesting a return call and advice was given that the matter may go to a non compliance hearing on Friday of that week. That advice was then recorded in email correspondence sent to Ms Farley.

[8] As no material had been filed, the matter was listed for a non compliance hearing before Commissioner Wilson on 26 May 2017. Despite attempts to contact her, Ms Farley did not attend. Bendigo Regional YMCA made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Farley had failed to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Bendigo Regional YMCA’s oral application. Correspondence was then sent to Ms Farley, via email and post, informing her of Bendigo Regional YMCA’s s.399A application. Ms Farley was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Monday, 5 June 2017.

[9] As no material was filed with the Commission by the due date, on 6 June 2017 a voicemail was left for Ms Farley seeking an urgent return call in relation to the correspondence of 26 May 2017.

[10] 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.

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

[12] As Ms Farley did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Farley has failed to respond to the many attempts by the Commission to contact her. Apart from initially filing her application and attending the conciliation, Ms Farley has shown no willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with directions or her non-attendance at the non compliance hearing. In these circumstances, I will exercise my discretion under s.399A(1)(b) and dismiss Ms Farley’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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