Miss Claudia Cristina Monteiro v Hope Community Services Ltd

[2021] FWC 6181

[2021] FWC 6181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Claudia Cristina Monteiro
v
Hope Community Services Ltd
(U2021/7463)

DEPUTY PRESIDENT BINET PERTH, 25 OCTOBER 2021

Application Dismissed - s 399A of the Fair Work Act (Cth).

[1] On 20 August 2021, Ms Claudia Monteiro (Ms Monteiro) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Hope Community Services Ltd (Hope Community).

[2] On 1 September 2021, Hope Community filed a Form F3 - Employer response to unfair dismissal application raising the jurisdictional objection that Ms Monteiro was not dismissed (Jurisdictional Objection).

[3] The Application was allocated to my Chambers for determination.

[4] On 22 September 2021 the parties were notified that the Application would be listed for a conference on 5 October 2021 to endeavour to resolve the matter by conciliation. On 23 September 2021 Ms Monteiro requested that the conference be adjourned for at least eight weeks to “allow further opportunities for employment to arise”. She also indicated that she was not ready and that she could “possibly be in transit”.

[5] On 28 September 2021 Ms Monteiro was informed that the FWC was required to determine matters expeditiously and that the adjournment request was refused. On 29 September 2021 Ms Monteiro informed Chambers that she would not attend the conference. The Conference was therefore vacated.

[6] Directions were issued to parties on 7 October 2021 which required Ms Monteiro to file her materials in relation to the merit of the Application by 4pm (AWST) 14 October 2021 and her materials in response to the Jurisdictional Objection by 21 October 2021 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[7] Ms Monteiro failed to file any materials in accordance with the Directions.

[8] After 4pm on 14 October 2021, Chambers wrote to Ms Monteiro and reminded her that her materials in relation to the merits of her application were overdue.

[9] On 15 October 2021 Hope Community made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms Monteiro failed to comply with the Directions (Dismissal Application).

[10] Ms Monteiro was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) on Monday 18 October 2021. Chambers advised Ms Monteiro that if she did not file submissions and evidence by 4pm (AWST) Monday 18 October 2021the Application would be dismissed pursuant to section 399A of the FW Act.

[11] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Ms Monteiro by 4pm (AWST) Monday 18 October 2021, or since.

[12] Section 399A of the FW 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 other 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.”

[13] Ms Monteiro failed to file the materials she was directed to file by the dates specified in the Directions. As at the date of this decision Ms Monteiro has still not filed any materials in support of her Application or in response to the Dismissal Application. Ms Monteiro has not sought an extension to file her materials in support of the Application or in response to the Dismissal Application. I am satisfied that Ms Monteiro has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Hope Community and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

[14] An Order to this effect will be issued with this decision. 1

DEPUTY PRESIDENT

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