Maureen Mazid v Yamaha Motor Finance Australia Pty Ltd T/A Yamaha Motor Finance

[2016] FWC 5852

[2016] FWC 5852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maureen Mazid
v
Yamaha Motor Finance Australia Pty Ltd T/A Yamaha Motor Finance
(U2016/7428)

COMMISSIONER WILSON MELBOURNE, 22 AUGUST 2016

Application for relief from unfair dismissal.

[1] On 3 June 2016, Ms Mazid made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Mazid’s employment had been terminated by Yamaha Motor Finance on 13 May 2016.

[2] The matter was listed for conciliation on 29 June 2016 however it could not take place as Ms Mazid did not receive the conciliation notice.

[3] The matter was again listed for conciliation on 28 July 2106 however the conciliation could not take place as Ms Mazid did not answer her telephone or call the Commission back.

[4] Consequently, directions were issued and the matter was listed for hearing.

[5] Ms Mazid was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 22 August 2016.

[6] On 29 July 2016, Yamaha Motor Finance filed an objection to the application and sought the dismissal of Ms Mazid’s application pursuant to section 399A of the Act. Yamaha Motor Finance based their objection on grounds which included Ms Mazid’s failure to attend the conciliations.

[7] On 5 August 2016, Ms Mazid was sent correspondence informing her of Yamaha Motor Finance’s section 399A application. Ms Mazid was directed to file submissions and other documentary material in respect of Yamaha Motor Finance’s application by close of business, on 12 August 2016. Ms Mazid was advised that if she failed to comply with this direction, her application would be dismissed.

[8] Ms Mazid did not file any material with the Commission.

[9] 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.

[10] I am satisfied that Yamaha Motor Finance’s objection filed on 29 July 2016 is an application to have the matter dismissed for Ms Mazid’s failure to attend conciliations.

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

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

[13] As Ms Mazid has provided no explanation for her failure to comply with directions, I find that her failure was unreasonable.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Mazid has failed to respond to the many attempts by the Commission to contact her. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Mazid’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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