Mellena Webster v The Camp Australia Foundation T/A Camp Australia Services Pty Ltd

[2016] FWC 2791

[2016] FWC 2791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mellena Webster
v
The Camp Australia Foundation T/A Camp Australia Services Pty Ltd
(U2016/4689)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 MAY 2016

Application for relief from unfair dismissal.

[1] On 18 February 2016, Ms Mellena Webster made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Webster’s employment had been terminated by Camp Australia Services Pty Ltd on 15 February 2016.

[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 Webster was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 29 March 2016.

[4] Ms Webster did not comply with this direction.

[5] On 4 April 2016, the Camp Australia filed an objection to the application and sought the dismissal of Ms Webster’s application pursuant to s399A of the Act. Camp Australia based their objection on Ms Webster’s failure to comply with directions of the Commission.

[6] On 8 April 2016, Ms Webster was sent correspondence informing her of Camp Australia’s section 399A application. Ms Webster was directed to file submissions and other documentary material in respect of Camp Australia’s application by close of business, on 18 April 2016. Ms Webster was advised that if she failed to comply with this direction, her application would be dismissed.

[7] On 18 April 2016, Ms Webster filed a medical certificate for the time period between 31 March 2016 and 13 April 2016. Ms Webster did not provide any explanation or other information with her medical certificate.

[8] The Commission attempted to contact Ms Webster on 29 April 2016 and 4 May 2016 without success.

[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 Webster did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] Ms Webster advised that she was unfit for work between 31 March 2016 and 13 April 2016. This certificate does not explain why she was unable to file material in support of her application by 29 March 2016. Further, it does not explain why Ms Webster was unable to respond to the s.399A application. I am therefore satisfied that her failure to comply was unreasonable.

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Webster has failed to respond to the attempts by the Commission to contact her. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Webster’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR579993>