Megan Harvey v Target Australia Pty Ltd

[2014] FWC 2216

[2014] FWC 2216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Megan Harvey
v
Target Australia Pty Ltd
(U2013/11101)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 APRIL 2014

Application for relief from unfair dismissal.

[1] On 25 June 2013, Ms Megan Harvey made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Harvey’s employment had been terminated by Target Australia Pty Ltd (Target) on 6 June 2013.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Harvey was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 23 September 2013.

[4] Ms Harvey requested for an adjournment of the hearing date and an extension to file her submissions. The hearing was postponed and a further period of time was granted for Ms Harvey to file her material by 28 January 2014.

[5] On 29 January 2014, a further extension of time was granted to Ms Harvey to file her material by 5 February 2014.

[6] Ms Harvey did not comply with this direction and the matter was listed for a non compliance hearing before me on 14 February 2014.

[7] On 12 February 2014, Target filed an objection to the application and sought the dismissal of Ms Harvey’s application. Target based their objection on grounds which include:

(a) failure to comply with directions;

(b) the application is frivolous or vexatious; and

(c) the application has no reasonable prospects of success.

[8] On 14 February 2014, Ms Harvey was sent correspondence informing her of Target’s application. The hearing dates of 5, 6 and 7 March 2014 were cancelled and Ms Harvey was directed to file submissions and other documentary material in respect of Target’s application by close of business, on 6 March 2014.

[9] Ms Harvey did not file any material with the Commission.

[10] 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.

[11] I am satisfied that Target’s objection filed on 12 February 2014 is an application to have the matter dismissed for Ms Harvey’s failure to comply with directions.

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

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

[14] After considering all the material, Ms Harvey’s application for remedy from unfair dismissal is dismissed because she failed to comply with the Commission’s directions. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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