Melanie Frisch v Austview Holdings Pty Ltd T/A Smarthealth

[2014] FWC 4987

[2014] FWC 4987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Frisch
v
Austview Holdings Pty Ltd T/A Smarthealth
(U2014/5311)

COMMISSIONER WILSON MELBOURNE, 25 JULY 2014

Application for relief from unfair dismissal.

[1] On 6 March 2014, Ms Melanie Frisch made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Frisch’s employment had been terminated by Austview Holdings Pty Ltd T/A Smarthealth (Smarthealth) on 13 February 2014.

[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 Frisch was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 2 June 2014.

[4] Ms Frisch requested two separate extensions to file her submissions. Further periods of time were granted and Ms Frisch was required to file her material by 30 June 2014.

[5] Ms Frisch did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Johns on 11 July 2014.

[6] Ms Frisch did not attend the non compliance hearing. Smarthealth made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Frisch had failed to comply with the direction of the Fair Work Commission (the Commission). Commissioner Johns waived compliance with the Fair Work Commission Rules 2013 and accepted Smarthealth’s oral application.

[7] On 14 July 2014, Ms Frisch was sent correspondence informing her of the Respondent’s s.399A application. Ms Frisch was directed to file submissions and other documentary material in respect of Smarthealth’s application by close of business, on 18 July 2014. Ms Frisch was advised that if she failed to comply with this direction, her application would be dismissed.

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

[12] After considering all the material, Ms Frisch’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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