Ms Firehiwot Gebremeskel v Little Bay Pty Ltd T/A Moran Little Bay

[2017] FWC 5541

[2017] FWC 5541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Firehiwot Gebremeskel
v
Little Bay Pty Ltd T/A Moran Little Bay
(U2017/1526)

COMMISSIONER JOHNS CANBERRA, 26 OCTOBER 2017

Application for an unfair dismissal remedy – s.399 application to dismiss unfair dismissal application.

[1] On 13 February 2017, Ms Firehiwot Gebremeskel (Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). The Applicant alleged her employment had been terminated unfairly by Little Bay Pty Ltd T/A Moran Little Bay (Respondent) on 24 January 2017.

[2] The matter was the subject of conciliation, however, the matter was not resolved.

[3] The matter was subsequently listed for mentions/directions on 1 May 2017

[4] Consequently, directions were issued and the matter was listed for Determinative Conference on 14 June 2017. The directions issued required the Applicant to file her submissions by 15 May 2017 (the Directions).

[5] The Applicant failed to file her submissions as required by the Directions.

[6] On 24 May 2017 the Commission gave the Applicant one more day to file submissions, which she failed to comply with.

[7] On 26 May 2017, the Respondent made an application that the Commission exercise its discretion under s.399A of the Act to dismiss the application on the basis of the applicant’s failure comply with the Directions.

[8] On 29 May 2017, the Commission issued directions stating that the Applicant must file their submissions by close of business on 2 June 2017, stating that failure to comply with this direction will result in the Applicant’s application for an unfair dismissal remedy being dismissed (the Second Directions).

[9] The Applicant failed to file her submissions as required by the Second Directions.

[10] On 6 June 2017, the Applicant’s newly appointed solicitor stated that the Applicant intended to file her submissions and that the fact the Applicant was previously unrepresented explained the failure to follow both the Directions and Second Directions. The same day the Applicant filed their submissions.

[11] On 8 June 2017 the listing mentioned above at [4] was amended to 5 July 2017. Directions were issued that the Respondent file their submissions by 21 June 2017 and the Applicant file any reply submissions by 5 July 2017.

[12] On 20 June 2017 the listing mentioned above at [11] was relisted by request of the Applicant to 5 September 2017.

[13] On 21 June 2017 the Respondent filed their submissions.

[14] On 25 August 2017 the Applicant started negotiations to settle the matter. Those attempts were unsuccessful. The matter proceeded to a Determinative Conference.

The Determinative Conference

[15] On 5 September 2017, the Applicant did not appear at the scheduled Determinative Conference. Subsequently on the same day, the Applicant’s solicitor filed an affidavit stating that the solicitor made the Applicant aware of the Determinative Conference.

[16] On 12 September 2017 the Respondent made an application that the Commission exercise its discretion under s.399A of the Act to dismiss the application.

[17] On 16 September 2017, the Applicant’s solicitor filed a F54 Notice of Representative Ceasing to Act, and ceased to act for the Applicant.

[18] On 18 September 2017, the Commission instructed the Applicant by email that they must file a response as to why the matter should not be dismissed by 22 September 2017.

[19] The Applicant failed to respond.

Determination

[20] 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.

[21] Because the Applicant did not file any material in opposition to the application to dismiss her application for unfair dismissal remedy, I will determine the s.399A application on the papers.

[22] I am satisfied that the Applicant unreasonably failed to attend the Determinative Conference on 5 September 2017.

[23] Consequently, after considering all the material, the Applicant’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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