Miss Deborah Puckeridge v Shaun's Bar and Grill

[2017] FWC 1679

[2017] FWC 1679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Deborah Puckeridge
v
Shaun’s Bar and Grill
(U2017/622)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 20 January 2017, Miss Deborah Puckeridge made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Puckeridge was notified of her dismissal by Shaun’s Bar and Grill on 17 January 2017.

[2] The matter was listed for conciliation on 31 January 2017, however it could not take place due to the unavailability of Miss Puckeridge, despite both parties having earlier confirmed they would attend. Consequently, directions were issued and the matter was listed for hearing.

[3] Miss Puckeridge was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon on Monday, 27 February 2017. Miss Puckeridge did not file any material by that time.

[4] The Fair Work Commission attempted to telephone Miss Puckeridge regarding her outstanding material and voicemails were left on 1 and 2 March 2017 seeking a return call. In the latter call, the voicemail message also advised the matter would be listed for a non compliance hearing. An email was also sent to Miss Puckeridge on 1 March 2017 asking that she contact the Commission regarding her submissions.

[5] As Miss Puckeridge did not comply with the directions, the matter was listed for a non compliance hearing before Commissioner Wilson on 3 March 2017.

[6] Miss Puckeridge did not attend the non compliance hearing. Shaun’s Bar and Grill made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Miss Puckeridge had failed to comply with the direction of the Fair Work Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Shaun’s Bar and Grill’s oral application.

[7] On 3 March 2017, Miss Puckeridge was sent correspondence informing her of Shaun’s Bar and Grill’s s.399A application. Miss Puckeridge was directed to file submissions and other documentary material in respect of Shaun’s Bar and Grill’s application by close of business on Friday, 10 March 2017. Miss Puckeridge was advised that if she failed to comply with this direction, her application would be dismissed.

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

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Puckeridge has failed to respond to the attempts by the Commission to contact her. She has shown no willingness to prosecute her case and has provided no explanation for her failure to comply with directions. In these circumstances, I will exercise my discretion under s.399A(1)(b) and dismiss Miss Puckeridge’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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