Miss Sili Ester Lei v ALDI Stores (A Limited Partnership)

[2022] FWC 3077

[2022] FWC 3077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Miss Sili Ester Lei
v

ALDI Stores (A Limited Partnership)

(U2022/9041)

COMMISSIONER JOHNS MELBOURNE, 18 NOVEMBER 2022

Application for an unfair dismissal remedy - Section 399A - Dismissing Applications - Failure to attend hearing held by the Commission - Failure to comply with a direction of the Commission.

1. On 18 November 2022, Miss Sili Ester Lei (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Application was made in respect of her employment at ALDI Stores (A Limited Partnership) (the Respondent).

1. The Applicant commenced working for the Respondent in November 2018. On 18 August 2022, the Respondent notified the Applicant of their intention to dismiss the Applicant. The dismissal took effect on that same day.

1. On 30 September 2022, the Respondent lodged a Form F3 response to the Applicant’s application.

1. On 14 October 2022, a conciliation was scheduled before a conciliator of the Fair Work Commission (Commission), however, the Applicant did not attend.

1. On 19 October 2022, the matter was allocated to me by Commissioner Bissett. On 20 October 2022, I sent the parties a notice of listing, listing the matter for a mention/directions hearing at 3:00pm (AEDT) on Friday, 28 October 2022 (First Mention).

1. At the First Mention, the Applicant failed to attend. At the commencement of the hearing, my Associate called the Applicant and advised her that the hearing had commenced at 3:00pm. The Applicant stated that she was unaware of the hearing and stated that she was unwilling to make herself available.

1. The Respondent was represented by Mr Timothy Ashton from Hentys Lawyers. With the consent of the Respondent, I listed the matter for a further mention/directions hearing at 3:00pm (AEDT) on Friday, 4 November 2022 (Second Mention) to afford the Applicant with a further opportunity to attend.

1. At the Second Mention, the Applicant again failed to attend. At the commencement of the hearing, my Associate attempted to call the Applicant four times. The Applicant was given until 4:00pm to attend the hearing, however, she failed to do so. Despite the Applicant’s absence, the hearing proceeded. At the hearing, the Respondent made an oral s.399A application on transcript to have the Applicant’s s.394 application for an unfair dismissal remedy dismissed.

1. 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 another 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.”

1. To afford the Applicant with an opportunity to respond to the Respondent’s application to dismiss, I sent the Applicant a letter via email to the email address nominated on her Form F2 Application on 4 November 2022. The letter directed the Applicant to explain her failure to attend both mention/direction hearings by no later than 5:00pm on 11 November 2022.

1. To date, neither my Chambers nor the Commission Registry has received any response from the Applicant.

1. Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy on the bases that the Applicant has unreasonably failed to attend a hearing held by the Commission, and further, unreasonably failed to comply with a direction of the Commission.

1. An order giving effect to this decision will be issued simultaneously with this decision

COMMISSIONER

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