Ms Elly Jenkins v Nestle Australia Ltd

[2022] FWC 1204

[2022] FWC 1204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Elly Jenkins

v

Nestle Australia Ltd

(U2022/1314)

COMMISSIONER WILSON MELBOURNE, 17 May 2022

Application for relief from unfair dismissal – dismissed under section 399A

1. On 1 February 2022, Ms Elly Jenkins (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Ms Jenkins’ employment had been terminated by Nestle Australia Ltd (the Respondent) on 14 January 2022.

1. The matter was listed for mention before Commissioner with a number of other linked matters, which shared similar facts and the same Respondent, on 7 February 2022.[1] Following this mention, directions were issued, and the matter was listed for hearing.

1. Ms Jenkins was directed to file with the other applicants a single set of submissions on the question of whether the Respondent had a valid reason for their dismissal. Along with the other applicants, she was also directed to file any evidence, if possible, as an agreed statement of facts, and, to the extent that an agreed statement of facts was not possible, as ‘representative’ witness statements. This was all directed to be filed with the Commission by 4.00PM AEST on 19 April 2022.

1. On 8 March 2022 the Australian Manufacturing Workers’ Union (AMWU), who had previously been acting as representative of the Applicant, filed a notice that they had ceased to act for the Applicant.

1. On 20 April 2022 correspondence was sent to the Applicant notifying her that her submissions had become overdue and that the Respondent would be at liberty to make a s.399A application should her materials not be filed by close of business 22 April 2022.

1. On 22 April 2022, it came to the Commissioner’s attention that, following AMWU ceasing to act for Ms Jenkins and a number of the other applicants in the linked matters to which Ms Jenkins was joined, some of the applicants had not come into possession of their initiating applications and the responses to those initiating applications.

1. Due to this, the Commissioner considered it appropriate to schedule the matters for a mention at which the previously issued directions would be reset.

1. The matter was listed for mention at 9:30AM AEST 28 April 2022 and all parties were advised they were required to attend.

1. Ms Jenkins did not attend this listing. Three calls were made to Ms Jenkins at the time the listing was due to commence, and messages were left for her noting her attendance was required. No return communications were received from Ms Jenkins.

1. Following this, at the 28 April mention, the Respondent’s representative made an oral application for Ms Jenkins’ application to be dismissed under s.399A due to Ms Jenkins’ non-attendance.

1. On 28 April 2022 Ms Jenkins was sent correspondence informing her of the Respondent’s s.399A application. Ms Jenkins was directed to file submissions and other documentary material in respect of the Respondent’s application by 4.00PM AEST 5 May 2022. Ms Jenkins was advised that if she failed to comply with this direction, her application would be dismissed.

1. Ms Jenkins did not file 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. I am satisfied that the Respondent’s objection made orally on 28 April 2022 is an application to have the matter dismissed for Ms Jenkins’ failure to attend a mention conducted by the FWC in relation to her 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 Jenkins did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. After considering all the material, Ms Jenkins application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

[1] Matters U2022/1178; U2022/1303; U2022/1305; U2022/1307; U2022/1311; U2022/1312; U2022/1315; U2022/1347; U2022/1399; U2022/1418; U2022/1527; U2022/1528.

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