Mrs Cheryle Simpson v Eyecare Centre Carine
[2022] FWC 3251
•9 DECEMBER 2022
| [2022] FWC 3251 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Cheryle Simpson
v
Eyecare Centre Carine
(U2022/5505)
| DEPUTY PRESIDENT BINET | PERTH, 9 DECEMBER 2022 |
Application for an unfair dismissal remedy. Application dismissed under s 399A of the Fair Work Act 2009 (Cth).
On 18 May 2022, Mrs Cheryle Simpson (Mrs Simpson) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Eyecare Centre Carine (Eyecare Centre Carine).
On 2 June 2022, Ms Lily Wall (Ms Wall) filed a Form F3 - Employer response to unfair dismissal application (Form F3) on behalf of Eyecare Centre Carine. The Form F3 raised a jurisdictional objection asserting that Eyecare Centre Carine is not a national system employer and that therefore Mrs Simpson is not a national system employee and not eligible to seek a remedy for unfair dismissal pursuant to section 394 of the FW Act (Jurisdictional Objection).
A conference was held between the parties by a staff conciliator on 24 June 2022 but the issues between the parties could not be resolved.
On 13 September 2022 the Application was allocated to my Chambers for determination. On 29 September, after my return from annual leave, the Application was listed for a conference on 5 October 2022. Mrs Simpson requested that the Conference be rescheduled. The Application was relisted for a conciliation conference to be held on 19 October 2022.
On 14 October 2022, Chambers received an email from Mrs Simpson’s representative Mr Gary Simpson (Mr Simpson) indicating that Mrs Simpson was unable to attend the conciliation conference which had been listed for 19 October 2022. In his email to Chambers Mr Simpson indicated that a death had occurred in his family and neither he nor Mrs Simpson would be available to attend a conference.
On 4 November 2022, Chambers informed the parties that directions would be issued for the determination of the Application.
Directions were issued to parties on 18 October 2022 which required Mrs Simpson to file her materials in relation to the Jurisdictional Objection by 4pm (AWST) Thursday 3 November 2022 (Directions).
In the same correspondence Chambers informed Mrs Simpson that if she is not eligible to seek an unfair dismissal remedy in the FWC she may be eligible to make an application to the WA Industrial Relations Commission. Chambers stated that:
“ time limits apply to such applications and therefore Mrs Simpson should urgently confirm if she has filed her application in the correct jurisdiction. If Mrs Simpson wishes to discontinue the Application to pursue her claim in another jurisdiction, she should file a Form F50 Notice of Discontinuance attached with the Commission by 4pm (AWST) Thursday 3 November 2022.”
Mrs Simpson failed to file any materials in accordance with the Directions.
On Friday 4 November 2022, Chambers wrote to Mrs Simpson and reminded her that her materials in relation to the Jurisdictional Objection were overdue.
On 8 November 2022 Eyecare Centre Carine made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mrs Simpson had failed to comply with the Directions (Dismissal Application).
On Friday 9 November 2022 Mrs Simpson was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Wednesday 16 November 2022. Chambers advised Mrs Simpson that if she did not file submissions and evidence by 4pm (AWST) Wednesday 16 November 2022 the Application would be dismissed pursuant to section 399A of the FW Act.
On 17 November 2022, Chambers wrote to Mrs Simpson and stated:
" Your response to the Dismissal Application was due at 4pm (AWST) Wednesday 16 November 2022. You failed to file a response or your materials in support of your Application by that date.
The Deputy President has granted you a further fourteen days to file your response to the Dismissal Application and your materials in accordance with the Directions.
In the absence of you doing so your Application may be dismissed without further notice.”
No materials were filed in accordance with any of the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mrs Simpson by 1 December 2022, or since.
On 6 December 2022, my Chambers emailed the Parties and informed them that the Application would be dismissed pursuant to s 399A of the FW Act.
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 other 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.”
Mrs Simpson failed to file the materials she was directed to file by the dates specified in the Directions. As at the date of this decision Mrs Simpson has still not filed any materials in support of the Application or in response to the Dismissal Application. I am satisfied that Mrs Simpson has unreasonably failed to comply with directions of the FWC relating to this Application.
It appears unlikely that Mrs Simpson is a national system employer. If that is the case then the Application would have no reasonable prospect of success in any event.
On the Application of Eyecare Centre Carine and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.
An Order[1] will be issued with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR748766>
[1] Print PR748020.
Printed by authority of the Commonwealth Government Printer
<PR748766>
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