Megan Bevan v Southern Cross Community Healthcare (Aust) Pty Ltd T/A Southern Cross

[2019] FWC 7039

[2019] FWC 7039

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Megan Bevan
v
Southern Cross Community Healthcare (Aust) Pty Ltd T/A Southern Cross
(U2019/7452)

COMMISSIONER BISSETT MELBOURNE, 11 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 8 July 2019, Ms Megan Bevan (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that her employment had been terminated by Southern Cross Community Healthcare (Aust) Pty Ltd T/A Southern Cross (Respondent) on 27 June 2019.

[2] The matter was listed for conciliation on 13 August 2019 however the conciliation could not proceed as the Commission was unable to contact the Applicant on that date.

[3] On 28 August 2019, directions were issued to the parties and the matter was listed for Jurisdiction (Not an employee) and Arbitration Conference/Hearing on 22 – 25 October 2019. The Applicant was directed to file her material by no later than noon on 23 September 2019. No such material was received.

[4] At 1:58pm on 1 October 2019, the Commission attempted to telephone the Applicant on their nominated phone number. The number was disconnected.

[5] At 3:48pm on 1 October 2019, the Commission emailed correspondence to the Applicant’s nominated email address regarding her failure to file her material by the required date. The Applicant was asked to advise the Commission by 2 October 2019 when she intended to file her submissions. The correspondence stated that if the Commission did not receive a response, her matter was at risk of being listed for a Non-Compliance Hearing on 4 October 2019. The Applicant failed to respond to the Commission’s correspondence.

[6] On 2 October 2019, as no response from the Applicant had been received by the Commission, a Notice of Listing was issued to the parties scheduling a Non-Compliance Hearing for 4 October 2019.

[7] The Non-Compliance Hearing proceeded before Commissioner Harper-Greenwell on 4 October 2019 at 10:00am. The Applicant could not be contacted. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with directions of the Commission. Commissioner Harper-Greenwell waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[8] On 4 October 2019, following the Non-Compliance Hearing, correspondence was sent to the Applicant’s nominated email address advising her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss her application by no later than 4.00 pm on 8 October 2019. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[9] To date, the Applicant has not filed any material with the Commission.

[10] Section 399A of the FW 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.

[11] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant 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. The Applicant has failed to respond to numerous attempts made by the Commission to contact her and has provided no explanation to the Commission for her failure to comply with the directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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