Michelle Peters v Shen Therapies Reproductive Medicine Pty Ltd T/A Shen Thereapies Reproductive Medicine

[2016] FWC 1726

[2016] FWC 1726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Peters
v
Shen Therapies Reproductive Medicine Pty Ltd T/A Shen Thereapies Reproductive Medicine
(U2015/16253)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 MARCH 2016

Application for relief from unfair dismissal.

[1] On 26 November 2015, Ms Michelle Peters made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Peters’ employment had been terminated by Shen Therapies Reproductive Medicine Pty Ltd on 7 November 2015.

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

[3] Ms Peters was directed to file an outline of submissions, witness statements and other documentary material she wished to rely on by noon, 15 February 2016.

[4] Ms Peters did not comply with this direction. On 16 February 2016, the Commission contacted Ms Peters and she advised that “after speaking to lawyer [sic] [she] believe[s] there was little chance of a win coming out of my unfair claim”. A Form F50 - Notice of Discontinuance was sent to Ms Peters to complete and return to the Commission. She did not complete this form or discontinue her application by telephone. The Commission made further attempts to contact Ms Peters, however each of those was unsuccessful.

[5] The matter was listed for a non compliance hearing before Commissioner Roe on 4 March 2016.

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

[7] Following the hearing, Ms Peters was sent correspondence informing her of Shen Therapies Reproductive Medicine’s section 399A application. Ms Peters was directed to file submissions and other documentary material in respect of Shen Therapies Reproductive Medicine’s application by close of business, 15 March 2016. Ms Peters was advised that if she failed to comply with this direction, her application would be dismissed.

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

[12] Ms Peters has provided no explanation for her failure to comply with directions, as such, I find that her failure was unreasonable.

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

DEPUTY PRESIDENT

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