Marija Wesson v Metcash Trading Limited

Case [2024] FWC 566
[2024] FWC 566

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marija Wesson
v

Metcash Trading Limited

(U2023/12326)

COMMISSIONER MCKINNON

SYDNEY, 1 MARCH 2024

Application for an unfair dismissal remedy – s.399A dismissal

  1. On 11 December 2023, Ms Marija Wesson applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in relation to her former employment with Metcash Trading Limited (Metcash).

  1. On 26 February 2024, Metcash applied under s.399A of the Act for dismissal of Ms Wesson’s application. Ms Wesson was invited to advise whether she wished to be heard on the application by close of business on Thursday, 29 February 2024. No response was received.

  1. I am satisfied that Ms Wesson has unreasonably failed to comply with a direction of the Commission relating to the application. The relevant facts are these:

  1. On 16 January 2024, Ms Wesson and Metcash participated in a conciliation conference in the Commission. Ms Wesson left the conference without explanation before it had concluded, and the matter was not resolved.

  1. On 31 January 2024, I issued Directions for the filing of evidence and submissions in the case, listed the matter for conciliation on 19 February 2024 and set a hearing date in relation to the application. Among other things, the Directions required Ms Wesson to file an outline of submissions, any witness statements and other evidentiary material on which she wished to rely, by 14 February 2024. The Directions were later amended to adjust the hearing date only. The balance of the Directions remained unaltered.

  1. Ms Wesson did not file any evidence or submissions in accordance with the Directions by 14 February 2024.

  1. On 19 February 2024, Ms Wesson did not attend the listed conciliation in accordance with the Directions.

  1. No explanation has been provided by Ms Wesson about the reasons for her non-compliance with the Directions. Ms Wesson has not responded to multiple attempts to contact her in relation to the application by the Commission and her non-compliance with the Directions. It is not reasonable, in the circumstances, to allocate further public resources to the handling of her case. Nor is it fair to put Metcash to the time and expense of having to defend a case that appears to have been abandoned.

  1. The application by Metcash under s.399A of the Act for dismissal of the application by Ms Wesson under s.394 of the Act is granted.

Order

  1. Application U2023/12326 is dismissed. 

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR771994>

Details
AGLC
Marija Wesson v Metcash Trading Limited [2024] FWC 566
Case
[2024] FWC 566
Decision Date

CaseChat Overview and Summary

Marija Wesson sought an unfair dismissal remedy against Metcash Trading Limited under section 394 of the Fair Work Act 2009. The application was made in relation to her former employment with Metcash. In response, Metcash applied under section 399A of the Act to dismiss Ms Wesson’s application for failure to comply with Commission directions. Commissioner McKinnon was tasked with deciding whether Ms Wesson’s application should be dismissed due to her non-compliance.

The legal issues for determination included whether Ms Wesson had unreasonably failed to comply with Commission directions and whether it was appropriate to dismiss her application under section 399A of the Act. The key facts were that Ms Wesson left a conciliation conference before it concluded and did not file any evidence or submissions by the specified deadline. She also did not attend a listed conciliation and failed to respond to multiple contact attempts regarding her non-compliance. The Commission had to assess whether it was reasonable to allocate further resources to the case given Ms Wesson’s inaction.

The Commissioner found that Ms Wesson had unreasonably failed to comply with the Commission’s directions and did not provide any explanation for her actions. Given the circumstances, it was not reasonable to allocate further resources to her case, and it would be unfair to require Metcash to defend a case that appeared abandoned. Therefore, the application by Metcash for dismissal of Ms Wesson’s application was granted. The order dismissed Ms Wesson’s application under section 394 of the Fair Work Act 2009.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.