Meagan De Haas v ACS Corporation Pty Ltd

[2018] FWC 4965

[2018] FWC 4965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394–Unfair dismissal

Meagan De Haas
v
ACS Corporation Pty Ltd
(U2018/5555)

COMMISSIONER WILSON MELBOURNE, 24 AUGUST 2018

Application for an unfair dismissal remedy.

[1] On 29 May 2018, Ms Meagan De Haas 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). Ms De Haas said she was notified of her dismissal on 9 May 2018, with it taking effect the same day. Mr Amnon Keleman of Employee Assist filed the application on behalf of Ms De Haas.

[2] The matter was listed for conciliation on 26 June 2018, however it did not resolve.

[3] On 6 July 2018, directions were issued for the filing of material. Ms De Haas was directed to file material in support of her application by no later than noon on 30 July 2018. ACS Corporation Pty Ltd (ACS) was directed to file its material in opposition to the application by no later than noon on 20 August 2018.

[4] On 11 July 2018, the directions were again sent to the parties along with confirmation of the hearing date. On the same day, Employee Assist filed a Notice of Representative Ceasing to Act.

[5] On 30 and 31 July 2018, attempts were made to contact Ms De Haas in relation to her overdue material, however these were unsuccessful and voicemails were left seeking a return call. An email was also sent to Ms De Haas on 31 July 2018 advising if no extension request or submissions were received by noon the following day, the matter would be listed for a non-compliance hearing.

[6] On 2 August 2018, there was a further attempt to contact Ms De Haas via telephone and a voicemail was left requesting a return call. Later that day, a Notice of Listing was sent to parties confirming the details of the non-compliance hearing to take place on 6 August 2018.

[7] The non-compliance hearing proceeded before Commissioner McKinnon on 6 August 2018. Ms De Haas could not be contacted. ACS made an oral application pursuant to s.399A of the Act that the matter be dismissed as Ms De Haas had failed to comply with a direction of the Commission. Commissioner McKinnon waived compliance with the Fair Work Commission Rules 2013 and accepted ACS’ s.399A application. Following the non-compliance hearing, correspondence was sent to Ms De Haas informing her of ACS’ s.399A application. Ms De Haas was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 13 August 2018. The correspondence stated that if the Commission did not receive a response, Ms De Haas’ application for relief from unfair dismissal would be dismissed.

[8] To date, Ms De Haas has not filed 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] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms De Haas has failed to respond to the many attempts by the Commission to contact her. Apart from initially filing her application and attending the conciliation, Ms De Haas has shown no willingness to prosecute her case and provided no explanation for either her failure to comply with directions or her non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Ms De Haas’ application.

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

COMMISSIONER

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