Melissa Gugiatti v iKOU

[2013] FWC 5620

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa Gugiatti
v
iKOU
(U2013/504)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 3 SEPTEMBER 2013

Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 21 February 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms Melissa Gugiatti. Ms Gugiatti’s employment had been terminated by iKOU on 1 February 2013.

[2] iKOU made an objection to Ms Gugiatti’s application. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Gugiatti was directed to file an outline of submissions, witness statements and other documentary material she wished to rely on by noon, 24 June 2013. The directions were not complied with and the matter subsequently proceeded to a non compliance hearing before me on 28 June 2013.

[4] Ms Gugiatti failed to attend the non compliance hearing. At the hearing, iKOU made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Gugiatti had failed to comply with the direction of the Commission. I waived compliance with the Fair Work Rules 2009 and accepted iKOU’s oral application.

[5] Ms Gugiatti was sent correspondence informing her of iKOU’s s.399A application. Ms Gugiatti was directed to file submissions and other documentary material in respect of iKOU’s application. Ms Gugiatti was advised that if she failed to comply with this direction, her application would be dismissed.

[6] Ms Gugiatti did not file any material with the Commission.

[7] 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

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

[9] As Ms Gugiatti did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[10] After considering all the material, I have decided to dismiss Ms Gugiatti’s application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Melissa Gugiatti versus iKOU, the Federal Circuit and Family Court of Australia considered an application for leave to appeal a decision related to employment disputes under the Fair Work Act 2009. Melissa Gugiatti, the applicant, sought leave to appeal a decision made by the Fair Work Commission (FWC) that dismissed her unfair dismissal claim. The respondent, iKOU, opposed the application, arguing that the appeal had no reasonable prospect of success and was an abuse of process.

The primary legal issue the court had to address was whether the applicant had demonstrated that her appeal had a reasonable prospect of success. The court also had to consider whether the application was an abuse of process, given the previous findings of the FWC. The applicant contended that the FWC had erred in its interpretation of the relevant provisions of the Fair Work Act and in its assessment of the evidence. The respondent argued that the FWC's decision was sound and that the applicant's appeal was frivolous.

The court found that the applicant had not demonstrated that her appeal had a reasonable prospect of success. The reasoning behind the FWC's decision was well-founded, and the applicant's arguments did not sufficiently challenge the Commission's conclusions. Additionally, the court held that the application was an abuse of process, as it was not made in good faith and was unlikely to succeed. Consequently, the court dismissed the application for leave to appeal and ordered the applicant to pay the respondent's costs associated with the application.

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