Marlene Townsend v Charlton Truck Stop

[2014] FWC 2025

[2014] FWC 2025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marlene Townsend
v
Charlton Truck Stop
(U2013/12891)

COMMISSIONER CRIBB MELBOURNE, 26 MARCH 2014

Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] An application, under section 394 of the Fair Work Act 2009 (the Act), was made by Ms Marlene Townsend (the Applicant) on 23 August 2013. Ms Townsend’s employment had been terminated by the Charlton Truck Stop (the Respondent) on 13 August 2013.

[2] A jurisdictional issue was raised in terms of whether Ms Townsend met the minimum employment requirements with the respondent. This issue was set down for hearing on Tuesday, 10 December 2013. Ms Townsend was directed to file an outline of submissions and any witness statements and other documentary material she wished to rely on by noon Monday, 11 November 2013. Ms Townsend failed to comply with the direction to file material by this date.

[3] The respondent requested an adjournment of the hearing set down for 10 December 2013. This was granted and the hearing was rescheduled for 2 April 2014. Further directions to file material accompanied the new notice of listing. No material was received from Ms Townsend by the due date - 7 March 2014.

[4] The respondent, on 13 March 2014, made a verbal application under section 399A of the Act to have the application dismissed due to the Applicant’s failure to comply with the directions of the Fair Work Commission (the Commission). I waved compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[5] On 13 March 2014, correspondence was sent to Ms Townsend directing her to file and serve submissions, by close of business on 24 March 2014, providing reasons as to why the Commission should not dismiss her application and that failure to comply with this direction would result in her application being dismissed.

[6] Ms Townsend did not file any material with the Commission.

[7] 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.

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.

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

[9] As Ms Townsend did not file any material in opposition to the application to dismiss and has failed to attend a hearing, I have decided to determine the application on the papers.

[10] After considering all the material, I have decided to dismiss Ms Townsend’s application for remedy from unfair dismissal pursuant to section 399A(1)(b) of the Act.

[11] An order 1 giving effect to this decision will be issued today.

 1   PR549005

Printed by authority of the Commonwealth Government Printer

<Price code A, PR549003>