Mrs Xinyu Fu v Hume Plasterboard Pty Ltd

[2024] FWC 3193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Xinyu Fu
v

Hume Plasterboard Pty Ltd

(U2024/11023)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 19 NOVEMBER 2024

Application for an unfair dismissal remedy – compliance with directions – application to dismiss

On 17 September 2024 Ms. Xinyu Fu (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) against her former employer, Hume Plasterboard Pty Ltd (Respondent).

On 24 October 2024 the matter was listed for hearing on 16 December 2024 and directions were made for the filing of material in support of the application by the Applicant by no later than 7 November 2024. The Applicant did not provide any witness statements, documents or submissions in response to the directions.

On 8 November 2024 my Chambers wrote to the Applicant indicating that the material referred to in the directions had not been received and indicating that the outstanding material should be provided by 4pm that day, or, if the Applicant was seeking a formal extension of the time for filing the material, a request should be made with appropriate evidence in support of any extension request. The Applicant responded with a request for the matter to be adjourned until March 2025 because she would be travelling overseas for her son’s holiday. The application for an adjournment was refused and the Applicant was reminded that the directions and the hearing date remained in place.

On 12 November 2024, the Respondent applied under s.399A of the Act for the application to be dismissed. On the same day, the Applicant was directed to file material in response to the Respondent’s application to dismiss the original application by 4pm on 14 November 2024. The Applicant was put on notice that in the absence of a response, the Commission may deal with the application on the basis of the material at hand. No response was received from the Applicant.

Pursuant to s.399A of the Act, I am satisfied that the Applicant has, on 7 November 2024, unreasonably failed to comply with a direction of the Commission relating to the application.

The application is dismissed under s.399A(1)(b) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application for unfair dismissal brought by Mrs Xinyu Fu against her former employer, Hume Plasterboard Pty Ltd. Mrs Fu filed an application for unfair dismissal remedy under section 394 of the Fair Work Act 2009. The Commission issued directions for Mrs Fu to file supporting material by a specified date, but she failed to do so. Instead, she sought an adjournment due to personal travel plans, which was refused. When subsequently directed to respond to the employer's application to dismiss her original application, Mrs Fu again failed to comply, submitting no material despite being warned of the consequences. The employer applied under section 399A of the Act for the dismissal of Mrs Fu's application, which was granted by the Commission.

The primary legal issue the Commission needed to address was whether Mrs Fu's failure to comply with the Commission's directions constituted grounds for dismissing her application under section 399A of the Fair Work Act 2009. The Court needed to determine if Mrs Fu's non-compliance was reasonable, and if not, whether the application should proceed or be dismissed. The Commission found that Mrs Fu's failure to file the required material and respond to the employer's application to dismiss was unreasonable. The Court concluded that her non-compliance warranted the dismissal of her application under section 399A(1)(b) of the Act.

In dismissing the application, Deputy President Roberts highlighted the importance of adhering to the Commission's directions. The decision emphasised that applicants must comply with procedural requirements to ensure the effective administration of justice. The Court's ruling underscored that unreasonable non-compliance with procedural directions could result in the dismissal of an application, regardless of the merits of the case. The Deputy President's decision was clear and decisive, affirming the need for strict adherence to procedural obligations in employment-related matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established