Leesa Tantuccio v The Touman Family Trust T/A Dr. Cantwells Veterinary Surgery

[2014] FWC 6804

[2014] FWC 6804

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leesa Tantuccio
v
The Touman Family Trust T/A Dr. Cantwells Veterinary Surgery
(U2014/10058)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 16 June 2014, Ms Leesa Tantuccio made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Tantuccio’s employment had been terminated by The Touman Family Trust T/A Dr. Cantwells Veterinary Surgery (CVS) on 26 May 2014.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Tantuccio was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 18 August 2014.

[4] Ms Tantuccio requested an extension to file her submissions. A further period of time was granted and Ms Tantuccio was required to file her material by 1 September 2014.

[5] Ms Tantuccio did not comply with this direction and the matter was listed for a non compliance hearing before me on 5 September 2014. At the hearing, neither party attended. Correspondence was sent to Ms Tantuccio and CVS which explained the purpose of the hearing and advised that the matter was adjourned until 12 September 2014. The correspondence also brought s.399A of the Act to the attention of the parties.

[6] Ms Tantuccio did not attend the non compliance hearing on 12 September 2014. CVS made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Tantuccio had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Commission Rules 2013 and accepted CVS’ oral application.

[7] On 12 September 2014, Ms Tantuccio was sent correspondence informing her of the Respondent’s s.399A application. Ms Tantuccio was directed to file submissions and other documentary material in respect of CVS’ application by close of business, on 22 September 2014. Ms Tantuccio was advised that if she failed to comply with this direction, her application would be dismissed.

[8] Ms Tantuccio did not file any material with the Commission.

[9] 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.

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

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

[12] After considering all the material, Ms Tantuccio’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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