Monique Nicholas v Autowest Paint Supplies Pty Ltd T/A Autowest Paint Supplies

[2018] FWC 2418

[2018] FWC 2418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Monique Nicholas

v

Autowest Paint Supplies Pty Ltd T/A Autowest Paint Supplies

(U2018/683)

Deputy President Clancy MELBOURNE, 1 MAY 2018

Application for an unfair dismissal remedy.

1. On 23 January 2018, Ms Monique Nicholas made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).  Ms Nicholas said she was notified of her dismissal on 4 January 2018, with it taking effect the same day.

1. The matter was listed for conciliation on 19 February 2018, however it did not resolve.

1. On 22 February 2018, requirements were issued for the filing of material.  Autowest Paint Supplies (APS) was directed to file its initial material by noon on 12 March 2018.  Ms Nicholas was required to file her material by noon on 19 March 2018.  APS complied with the direction to file its material.

1. In the afternoon of 19 March 2018 and again on 20 March 2018, the Commission attempted to telephone Ms Nicholas in relation to her overdue material.  On both occasions, there was no answer and a voicemail message was left requesting a return call as soon as possible.  There was also a text message sent to Ms Nicholas on 20 March 2018, which advised that her written material was due to be filed on 19 March 2018 and a telephone call was sought to discuss this further.

1. On 21 March 2018, another attempt to contact Ms Nicholas via telephone was made and a voicemail message was left seeking a return call.  An email was then sent to Ms Nicholas which confirmed no material had been filed in the Commission.  The email requested Ms Nicholas advise when she intended to file her submissions and that in the absence of a response, the matter would be listed for a non-compliance hearing on 23 March 2018.  As no response was received, later in the afternoon on 21 March 2018 another voicemail message was left for Ms Nicholas advising the matter would be listed for a non-compliance hearing and confirmation of her best contact telephone number was sought.  A Notice of Listing was then emailed to Ms Nicholas and APS confirming the details of the non-compliance hearing.

1. On 22 March 2018, a text message was sent to Ms Nicholas again confirming the matter was listed for a non-compliance hearing via telephone the following day and that Ms Nicholas could expect to receive a telephone call from the Commission at the relevant time.

1. The non-compliance hearing proceeded before me on 23 March 2018.  Ms Nicholas could not be contacted.  APS made an oral application pursuant to s.399A of the Act that the matter be dismissed as Ms Nicholas had failed to comply with a direction of the Commission.  I waived compliance with the Fair Work Commission Rules 2013 and accepted APS’ s.399A application.

1. On 26 March 2018, correspondence was sent to Ms Nicholas via email and post informing her of APS’ s.399A application.  Ms Nicholas was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 3 April 2018.  The correspondence stated that if the Commission did not receive a response, Ms Nicholas’ application for relief from unfair dismissal would be dismissed.

1. To date, Ms Nicholas has not filed any material with the Commission.

1. 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.

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

1. As Ms Nicholas did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary.  Ms Nicholas has failed to respond to the many attempts by the Commission to contact her.  Apart from initially filing her application and attending the conciliation, Ms Nicholas 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 Ms Nicholas’ application.

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

DEPUTY PRESIDENT

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