Merna Shaddad v Anatole G Kowaliw & Associates Pty Ltd T/A Koala Trucks - (Forklift Wholesalers)

[2017] FWC 1229

[2017] FWC 1229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Merna Shaddad
v
Anatole G Kowaliw & Associates Pty Ltd T/A Koala Trucks - (Forklift Wholesalers)
(U2016/12590)

DEPUTY PRESIDENT DEAN SYDNEY, 2 MARCH 2017

Application for relief from unfair dismissal.

[1] On 17 October 2016 Marsdens Law Group filed an application on behalf of Ms Merna Shaddad (the Applicant) for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant’s employment was terminated by Anatole G Kowaliw & Associates Pty Ltd T/A Koala Trucks (Forklift Wholesalers) on 26 September 2016.

[2] Following unsuccessful conciliation on 19 January 2017, directions were issued by the Commission on 3 February 2017 for the filing of an outline of submissions, witness statements and any other documentary material the Applicant wanted to rely upon. The matter was set down for a telephone mention on 8 February 2017, and for jurisdiction and arbitration hearing on 6 April 2017.

[3] On 8 February 2017, the Applicant did not attend the mention. The Applicant’s representative advised that they had not received instructions to attend and later filed a Notice ceasing to act for the Applicant. Following unsuccessful attempts to contact the Applicant on the telephone number she had provided, the Respondent was advised that the mention could not take place. My Associate was able to speak to the Applicant later on the day and was advised by the Applicant that she had been unwell and had not checked her emails. During the telephone conversation, the Applicant was advised that a mention by telephone would be conducted the following week at which time she must attend, and details will be sent to her later that day by email. The Applicant confirmed that she would check her emails and would seek legal representation. Despite this, the Applicant failed to attend the second mention which was listed at 9 am on 15 February 2017.

[4] Further correspondence was sent to the Applicant on 15 February 2017 in the following terms:

“I refer to your s.394 application.

The matter has been listed for mention by telephone on 8 February and again on 15 February. You failed to attend on both occasions.

You must advise the chambers in writing if you wish to proceed with your application, by close of business on 22 February 2017. If you fail to respond by this date the Deputy President may consider dismissing your application.

If you wish to proceed, the Directions issued on 3 February (please refer to the notice of listing) must be complied with.”

[5] The Applicant did not respond or comply with the Directions.

[6] A further attempt was made to contact the Applicant on 27 February however she was unable to be contacted.

[7] The matter was then listed for non-compliance hearing by telephone on 2 March 2017. Mr T Angelopoulos of National Workplace Lawyers appeared for the Respondent. Five attempts were made to contact the Applicant however she did not answer her telephone. Mr Angelopoulos, made an application under s.399A of the Act that the matter be dismissed on the basis that the Applicant failed to comply with directions.

[8] Section 399A of the Act provides:

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.

[9] The Applicant has failed to attend two mentions, and has failed to respond to correspondence from the Commission. There has been no extension of time to comply with the Directions sought by the Applicant and there has been no reason provided by the Applicant as to her non-compliance. She did not attend the hearing listed for today.

[10] I am satisfied that her failure to comply with the Directions is unreasonable and accordingly I have decided to dismiss the application pursuant to s.399A of the Act.

[11] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR590672>