Miss Sarah Locke v Wessel Petroleum T/A BP Sims Road

[2016] FWC 5053

[2016] FWC 5053

FAIR WORK COMMISSION

DECISION

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

Miss Sarah Locke
v
Wessel Petroleum T/A BP Sims Road
(U2016/6456)

COMMISSIONER HUNT BRISBANE, 27 JULY 2016

Application for relief from unfair dismissal.

[1] On 26 April 2016, Miss Sarah Locke made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Miss Lock’s employment had been terminated by Wessel Petroleum T/A BP Sims Road (Wessel Petroleum) on 22 April 2016.

[2] The matter was listed for conciliation on 31 April 2016 however could not take place as Miss Locke could not be contacted on the number she had provided to the Commission.

[3] On the same day, the Commission sent an email to Miss Locke. The email stated:

“Dear Applicant

……

……

I called the number you listed as your number at 9.15, 9.20 and 9:30am but there was no answer. I left voice mail messages for you to call me. I have not heard from you.

……

……

If you want this matter to proceed via another conciliation, then as a matter of urgency please email me your request and any unavailability (within 48 hours) and I will refer your request to our Unfair Dismissals Team in Melbourne for consideration.

……

If I do not hear from you within the next 48 hours I will refer this matter directly for arbitration before a Member of the Fair Work Commission (the Commission)”

[4] Miss Locke did not contact the Commission to request a further conciliation or otherwise.

[5] The application was allocated to me and on 1 July 2016 I issued Directions to the parties to prepare material for arbitration. The Directions required that Ms Locke provide her material to the Commission by no later than 4:00pm on Monday, 25 July 2016.

[6] The matter was listed for Mention/Conciliation conference by telephone on 18 July 2016. My Associate made several unsuccessful attempts to contact Ms Locke in relation to the conference. My Associate left a voicemail message for Ms Locke to contact the Commission.

[7] The conference could not take place as Ms Locke could not be contacted.

[8] On 18 July 2016 my Associate posted and emailed a letter to Ms Locke. The letter requested that Ms Locke provide an adequate reason for failing to attend the conference. I requested that Ms Locke provide a response by no later than 4:00pm on Monday, 25 July 2016. The letter also stated that Ms Locke’s application may be dismissed without any further notice if she failed to provide an adequate reason to the Commission.

[9] On 26 July 2016, my Associate attempted to contact Ms Locke by telephone but was again unsuccessful.

[10] Ms Locke did not respond to the letter of 18 July 2016.

[11] On 26 July 2016, Wessel Petroleum made application under s.399A of the Act to dismiss the application for Ms Locke’s failure to comply with the Directions made by the Commission and for her failure to attend a conference.

[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] To-date, Ms Locke has not made any contact with the Commission in relation to her application.

[14] Ms Locke has not complied with the Directions issued by the Commission on 1 July 2016.

[15] Ms Locke has not offered any explanation for not attending the conference or for not complying with the directions, despite being afforded many opportunities to do so. I find that Ms Lock has unreasonably failed to attend a conference and comply with the Directions of the Commission.

[16] Miss Locke has shown no willingness to prosecute her application. In those circumstances, I will exercise my discretion and dismiss Miss Locke’s application. I order accordingly.

COMMISSIONER

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