Lisa Perry v KDR Victoria Pty Ltd T/A Yarra Trams

[2014] FWC 2808

[2014] FWC 2808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Perry
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2013/17313)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 MAY 2014

Application for relief from unfair dismissal dismissed.

[1] On 11 December 2013, Ms Lisa Perry made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Perry’s employment had been terminated by KDR Victoria Pty Ltd T/A Yarra Trams (Yarra Trams) on 22 November 2013.

[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 Perry was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 11 March 2014.

[4] Ms Perry did not comply with this direction and the matter was listed for a non compliance hearing before me on 21 March 2014.

[5] At the non compliance hearing, Ms Perry provided me with reasons as to why she had not complied with the directions. I was inclined to allow an extension of time for the filing of Ms Perry’s material to 3 April 2014.

[6] Yarra Trams made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Perry 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 Yarra Trams’ oral application and informed the parties that this application would take effect from Ms Perry’s new compliance date.

[7] On 4 April 2014, Ms Perry was sent correspondence informing her of s.399A of the Act and reiterated that Yarra Trams made an application under this provision. As such, Ms Perry was directed to file submissions and other documentary material in respect of Yarra Trams’ application by close of business, on 18 April 2014. Ms Perry was advised that if she failed to comply with this direction, her application would be dismissed.

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

[9] Section 399A of the Act provides as follows:

(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 Perry 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 Perry’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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