Miss Kylie Hawkins v Glass House Holistic Veterinary Services

[2017] FWC 3201

[2017] FWC 3201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Kylie Hawkins
v
Glass House Holistic Veterinary Services
(U2017/410)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 12 January 2017, Miss Kylie Hawkins made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Hawkins said she was notified of her dismissal on 2 January 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 20 February 2017, however an adjournment request made by Glass House Holistic Veterinary Services (GHHVS) was granted and conciliation was re-listed for 27 February 2017. The conciliation could not proceed on 27 February 2017 as Miss Hawkins could not be contacted, despite four attempts to do so via telephone and one email being sent.

[3] Consequently, on 8 March 2017, directions were issued and the matter was listed for hearing. Miss Hawkins was directed to file an outline of argument, statement of evidence and document list by noon, Monday 27 March 2017. These directions were sent to Miss Hawkins via post and email.

[4] As Miss Hawkins did not file any material by the due date, on 28 March and 29 March 2017, there were three telephone calls made to Miss Hawkins seeking an update as to the status of her material. On two occasions, voicemails were left requesting a return call. Also on 28 March 2017, GHHVS sent email correspondence to the Fair Work Commission asking that the matter be withdrawn and struck off.

[5] As no material had been filed, the matter was listed for a non compliance hearing before Commissioner Wilson on 31 March 2017. The day prior, a further voicemail was left for Miss Hawkins advising of the telephone hearing the following day. Despite an attempt to contact Miss Hawkins, she did not attend the non compliance hearing. GHHVS made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Miss Hawkins had failed to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted GHHVS’s oral application. Correspondence was then sent to Miss Hawkins informing her of GHHVS’s s.399A application. Miss Hawkins was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Monday, 10 April 2017.

[6] To date, Miss Hawkins has not filed any material with the Commission.

[7] 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.

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

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

[10] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Hawkins has failed to respond to the many attempts by the Commission to contact her. Apart from initially filing her application, Miss Hawkins 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 Hawkins’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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