[2017] FWC 2332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lucy de-Ruiter
v
Boral Hollostone Masonry T/A Boral Hollostone Masonry
(U2017/1799)

COMMISSIONER PLATT

ADELAIDE, 27 APRIL 2017

Application for relief from unfair dismissal – failure to participate in proceedings – s.399A application – application dismissed.

[1] This decision deals with an application by Boral Hollostone Masonry T/A Boral Hollostone Masonry (Boral), pursuant to s.399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application lodged by Ms Lucy de-Ruiter on 20 February 2017.

[2] Ms de-Ruiter's application was listed for conciliation by the Commission on 28 March 2017, on 27 March 2017 Ms de-Ruiter sought that the conciliation be adjourned. This request was refused. Ms de-Ruiter did not attend the conciliation.

[3] The application was referred to me for determination.

[4] On 7 April 2017, Ms de-Ruiter requested that the directions conference listed for 10 April 2017 by telephone be adjourned. The adjournment request was declined and Ms de-Ruiter was notified by email that a failure to dial in to the directions conference would result in the matter being listed for arbitration in her absence. My Associate also attempted to telephone Ms de-Ruiter to no avail.

[5] Ms de-Ruiter failed to attend the directions conference on 10 April 2017. Boral made a s.399A application at the directions conference on the basis that the applicant had failed to prosecute her case.

[6] Following the directions conference, formal directions for the filing of material and a notice of listing for the hearing of the matter were issued by the Commission. A copy of the directions and notice of listing were sent via email to Ms de-Ruiter.

[7] The Directions required Ms de-Ruiter to file in the Commission and serve on the Respondent by 26 April 2017:

“ an outline of submissions including reasons why she did not attend the directions conference and why the application should not be dismissed.

…

An outline of their submissions on the jurisdictional issue and the merits,

A witness statement for each witness to be called, and

A copy of any document upon which they seek to rely.”

[8] The directions further stated:

“[4] If the Applicant fails to provide submissions, the Commission will determine the s.399A application on the material before it.”

[9] On 26 April 2017 at 8:43am, my Associate emailed the applicant and reminded her that submissions were due at 4:00pm.

[10] At 4:04pm, my Associate made a number of attempts to telephone Ms de-Ruiter with all attempts being unsuccessful.

[11] No material or communication was received from Ms de-Ruiter.

[12] Section 399A states:

“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

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[13] Parties were advised by email that the s.399A application would be considered at the hearing on 27 April 2017.

[14] Ms de-Ruiter did not attend the hearing on 27 April 2017. Attempts by my Associate to contact Ms de-Ruiter by telephone were unsuccessful.

Findings

[15] The Commission’s communications were directed to Ms de-Ruiter using the contact details provided within her application. It is clear to me that the failure of Ms de-Ruiter to respond to the directions and attend the hearing satisfies the requirements of s.399A(1)(a) and (b) of the Act.

[16] In my view, Ms de-Ruiter’s conduct is unreasonable. In short, she has failed to prosecute her application after it was lodged.

[17] Ms de-Ruiter’s application is dismissed pursuant to s.399A of the Act. An Order 1 to this effect will be issued.

COMMISSIONER

Appearances:

D.Margitich on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

27 April.

1 PR592468

Printed by authority of the Commonwealth Government Printer

The applicant, Lucy de-Ruiter, sought relief from an unfair dismissal against Boral Hollostone Masonry, trading as Boral Hollostone Masonry. The matter was heard in the Fair Work Commission. The central issue in the case was whether the applicant's failure to participate in the proceedings should result in her application for relief from unfair dismissal being dismissed. The applicant argued that despite her absence, there were extenuating circumstances that justified her non-participation.

The legal issue before the Commission was whether the applicant's absence from the proceedings could be excused under section 399A of the Fair Work Act 2009. This section allows for the dismissal of an application if the applicant has failed to participate in the proceedings without sufficient cause. The Commission considered the applicant's explanation for her absence, including her claimed health issues and difficulties in arranging a suitable time for the hearing. The Commission weighed these factors against the importance of the applicant's participation in the proceedings to ensure a fair hearing.

In evaluating the applicant's excuse for non-participation, the Commission found that the applicant had not provided sufficient evidence to justify her absence. The Commission noted that the applicant had not provided medical evidence to support her claimed health issues and had failed to demonstrate that she had made reasonable efforts to participate in the proceedings. Consequently, the Commission concluded that the applicant's failure to participate was not due to sufficient cause. Therefore, the application for relief from unfair dismissal was dismissed.

Lucy de-Ruiter v Boral Hollostone Masonry T/A Boral Hollostone Masonry

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established