Maria-Magdalena Xantopol v Canterbury College Ltd T/A Canterbury College

[2019] FWC 5730

[2019] FWC 5730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria-Magdalena Xantopol
v
Canterbury College Ltd T/A Canterbury College
(U2019/5053)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 4 May 2019, Ms Maria-Magdalena Xantopol made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Xantopol said she was notified that her employment had been terminated by Canterbury College on 18 April 2019 and that the dismissal took effect on the same day.

[3] A conciliation scheduled on 26 June 2019 was unable to proceed due to Ms Xantopol’s unavailability. The Commission’s records indicate that Ms Xantopol emailed the Commission conciliator on the morning of 27 June 2019 advising that she needed her solicitor to participate in the conciliation but was unable to get in contact with them.

[4] On 5 July 2019, the Commission issued a Notice of Listing scheduling the matter for a Jurisdiction and Arbitration Conference/Hearing on 10-12 September 2019. Directions were also issued requiring Canterbury College to file material in respect of its jurisdictional objection by no later than noon on 22 July 2019, Ms Xantopol to file material in response to the jurisdictional objection and in support of her application by no later than noon on 29 July 2019, and Canterbury College to file any reply material by no later than noon on 5 August 2019.

[5] On 10 July 2019, the Commission received an email from Canterbury College’s solicitors seeking a further opportunity to participate in conciliation. On 15 July 2019, the Commission spoke with Ms Xantopol to ascertain whether or not she wished to participate in a further conciliation. The Commission’s records indicate that Ms Xantopol advised that she would speak to her solicitor about it and would notify the Commission of her decision the next day.

[6] Canterbury College filed its material on 22 July 2019, in compliance with the Commission’s directions.

[7] No subsequent contact was received from Ms Xantopol and no material was received from her by noon on 29 July 2019.

[8] The Commission attempted to telephone Ms Xantopol on the afternoon of 29 July 2019 but was unable to reach her and a voicemail message was left. Following this, the Commission sent Ms Xantopol an email asking her to contact the Commission by 10am on 1 August 2019 in relation to the filing of her material.

[9] On 30 and 31 July 2019, further attempts to telephone Ms Xantopol were made in relation to her overdue material and voicemail messages were left for Ms Xantopol on each occasion.

[10] On 1 August 2019, a Notice of Listing was issued to the parties scheduling the matter for a non-compliance hearing on 2 August 2019. This was sent to Ms Xantopol’s nominated email address.

[11] The non-compliance hearing proceeded before Deputy President Colman on 2 August 2019. Ms Xantopol did not attend. Canterbury College made an oral application that the matter be dismissed pursuant to s.399A of the Act due to Ms Xantopol’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[12] Following the non-compliance hearing, correspondence was sent to Ms Xantopol’s nominated email address advising her of Canterbury College’s s.399A application. Ms Xantopol was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 9 August 2019. The correspondence warned that if the Commission did not receive a response from Ms Xantopol by this time, her application for relief from unfair dismissal may be dismissed.

[13] On 12 August 2019, as no response was received from Ms Xantopol, a Notice of Listing was sent to the parties cancelling the Jurisdiction and Arbitration Conference/Hearing scheduled for 10-12 September 2019.

[14] To date, Ms Xantopol has not filed any material with the Commission.

[15] 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.”

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

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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing her application, Ms Xantopol has failed to actively prosecute her case. Ms Xantopol has not been in contact with the Commission since 15 July 2019 and has provided no explanation to the Commission for either her continued failure to comply with the directions or her failure to attend the non-compliance hearing on 2 August 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Xantopol’s application. This ends her unfair dismissal application.

[19] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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