Leanne Massa v The Muir Electrical Company Pty Ltd T/A the Good Guys

[2016] FWC 7826

[2016] FWC 7826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanne Massa
v
The Muir Electrical Company Pty Ltd T/A The Good Guys
(U2016/8791)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 10 August 2016, Ms Leanne Masssa made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Massa’s employment had been terminated by The Muir Electrical Company Pty Ltd T/A The Good Guys (Muir) on 28 July 2016.

[2] The matter was the subject of conciliation on 13 September 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for a hearing relating to Muir’s jurisdictional objection on 17-18 November 2016.

[3] On 16 September 2016, Ms Massa was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 10 October 2016 (Direction).

[4] On 16 September 2016, the Commission provided Ms Massa with copies of the Commission’s standard form documents to assist her with complying with the Direction.

[5] On 21 September 2016, Muir advised that it was withdrawing its jurisdictional objection. While an amended Notice of Listing was issued by the Commission, the Direction remained unchanged.

[6] Ms Massa did not comply with the Direction. The Commission attempted to make telephone contact with Ms Walton on 10 October 2016 to raise the non-compliance with the Direction but was not able to leave a message on her voicemail.

[7] On 11 October 2016, Muir made application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Massa had failed to comply with the direction of the Fair Work Commission. The Commission made contact with Ms Massa on 11 October 2016. Ms Massa advised that she did not file her material as required by the Direction because her infant son had had an ear infection but that she still wished to pursue her application. Ms Massa was advised of the s.399A application made by Muir.

[8] On 12 October 2016, Ms Massa was sent correspondence informing her of Muir’s section 399A application. Ms Massa was directed to file submissions and other documentary material in respect of Muir’s application by close of business, on 19 October 2016. Ms Massa was advised that if she failed to comply with this direction, her application would be dismissed.

[9] Ms Massa did not file any material with the Commission.

[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 Massa did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] After considering all the material, Ms Massa’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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