Miss Corinne Tucker v Valley Bakehouse Pty Ltd T/A Valley Bakehouse Pty Ltd

[2017] FWC 5061

[2017] FWC 5061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Corinne Tucker
v
Valley Bakehouse Pty Ltd T/A Valley Bakehouse Pty Ltd
(U2017/8160)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] On 28 July 2017, Miss Corinne Tucker made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Tucker said her employment had been terminated by Valley Bakehouse Pty Ltd T/A Valley Bakehouse Pty Ltd (Valley Bakehouse) on 16 July 2017.

[2] The matter was listed for conciliation on 22 August 2017, however Valley Bakehouse declined to participate. Consequently, directions were issued and the matter was listed for Jurisdiction (Small Business Fair Dismissal Code) and Arbitration Conference/Hearing on 16-18 October 2017. Miss Tucker was directed to file submissions in opposition to the jurisdictional objection and in support of her application by no later than noon on Monday 4 September 2017.

[3] On 18 August 2017, Valley Bakehouse sent correspondence to the Fair Work Commission (the Commission) requesting that the matter be heard on the papers. Subsequently, correspondence was sent to Valley Bakehouse on 23 August 2017 advising that its request would be considered once both parties had filed written submissions.

[4] Following Valley Bakery’s further request for an extension of time to file submissions in support of its jurisdictional objection being granted, an amended Notice of Listing was issued which directed it to file by no later than 4:00pm on Wednesday 30 August 2017 and Miss Tucker by no later than 4:00pm on Wednesday 6 September 2017.

[5] On 30 August 2017, Valley Bakery filed initial submissions in compliance with the amended Notice of Listing.

[6] As no material had been received from Miss Tucker, on 7 September 2017 the Commission attempted to telephone her, however this was unsuccessful and a voicemail message was left seeking an urgent return call. On 8 September 2017, email correspondence was sent to Miss Tucker confirming no material had been filed. Miss Tucker was advised that if no contact from her was received by the Commission, the matter would be listed for a non compliance hearing via telephone on 15 September 2017.

[7] On 11 September 2017, a Short Message Service (SMS) reminder was sent to Miss Tucker by the Commission advising that her submissions were overdue.

[8] On 12 September 2017, a further telephone call made to Miss Tucker was unsuccessful and a voicemail message was left to advise that if she did not contact the Commission urgently then the matter would be listed for a non compliance hearing. Following the Commission receiving notification later that day that it had missed a call from Miss Tucker, another attempt was made to contact her by telephone yet this was also unsuccessful so a final voicemail message was left.

[9] On 13 September 2017, Miss Tucker attempted to telephone the Commission and left a voicemail message requesting a return call. In a follow up telephone call later that day, the Commission advised Miss Tucker that the matter would be listed for a non compliance hearing via telephone on 15 September 2017. Miss Tucker enquired as to ways in which she could discontinue her application and was advised that she may do so over the telephone or in writing. Miss Tucker said she would consider these options and contact the Commission if she wished to discontinue her application.

[10] Miss Tucker did not attend the non compliance hearing. Valley Bakery made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Miss Tucker had failed to comply with a direction of the Commission. Commissioner Harper-Greenwell waived compliance with the Fair Work Commission Rules 2013 and accepted Valley Bakery’s oral application. Correspondence was then sent to Miss Tucker informing her of Valley Bakery’s s.399A application. Miss Tucker was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday 22 September 2017. This correspondence was sent to Miss Tucker via email and post.

[11] To date, Miss Tucker has not filed any material with the Commission.

[12] 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.

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

[14] As Miss Tucker did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Tucker has failed to respond to numerous attempts made by the Commission to contact her. Apart from initially filing her application, Miss Tucker has shown no willingness to prosecute her case and provided no explanation for either her failure to comply with directions or her non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Miss Tucker’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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