Marites Garchitorena v Nelmeer Hoteliers Pty. Limited

[2023] FWC 2370

[2023] FWC 2370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marites Garchitorena
v

Nelmeer Hoteliers Pty. Limited

(U2023/5207)

DEPUTY PRESIDENT EASTON SYDNEY, 14 SEPTEMBER 2023

Application for an unfair dismissal remedy – s.399A application to dismiss – application dismissed.

1. On 13 June 2023 Ms Garchitorena made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that she had been unfairly dismissed from her employment with Nelmeer Hoteliers Pty. Limited.

1. Ms McDonald of Source Legal appeared on behalf of Nelmeer Hoteliers Pty. Limited (Nelmeer Hoteliers).

1. Telephone conciliation conferences were convened on 14 July 2023 and 24 August 2023. Ms Garchitorena did not attend and was unable to be contacted on both occasions.

1. The file was allocated to my chambers on 31 August 2023 and listed for a telephone directions hearing on 5 September 2023. Ms Garchitorena did not appear on that occasion and could not be contacted.

1. On 6 September 2023 Nelmeer Hoteliers applied for the matter to be dismissed under s.399A of the Fair Work Act 2009 (Cth) (FW Act) using the Form F1.

1. Directions were issued on 7 September 2023 requiring Ms Garchitorena to file and serve on Nelmeer Hoteliers any submissions she wished to make to address the s.399A application.

1. Ms Garchitorena did not file any material in accordance with the directions and has not responded to any of the attempts by the Commission to contact her.

1. Section 399A of the FW Act provides:

“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.”

1. The relevant principles were helpfully summarised in Lockyear v Graeme Cox[2021] FWCFB 875 (Lockyear) at [57]:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. There are no facts in dispute that require the Commission to conduct a hearing (per s.397). Section 399A(1)(a) is obviously satisfied. The jurisdictional pre-requisites are met for Ms Garchitorena’s application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercises cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

1. Numerous attempts have been made to contact Ms Garchitorena. Ms Garchitorena has failed to engage with the application, has shown no willingness to prosecute her case and has taken no steps to do so.

1. In these circumstances, I see no utility in allowing Ms Garchitorena claim to continue and I therefore grant Nelmeer Hoteliers’ application under s.399A.

1. An order given effect to this decision will be issued separately (PR766248).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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