Ms Kellie O'Neil v FMP Group (Australia) Pty Limited T/A FMP

[2015] FWC 2042

[2015] FWC 2042

FAIR WORK COMMISSION

DECISION

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

Ms Kellie O'Neil
v
FMP Group (Australia) Pty Limited T/A FMP
(U2015/2405)

COMMISSIONER JOHNS SYDNEY, 25 MARCH 2015

Application for relief from unfair dismissal.

[1] On 15 January 2015, Kellie O’Neill (Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Act). The Applicant’s employment had been terminated by FMP Group (Australia) Pty Limited (Respondent) on 8 December 2014. The Applicant’s application was lodged more than 21 days after the dismissal took effect, being 16 days late.

[2] On 10 February 2015, the Applicant was directed to lodge with the Fair Work Commission (Commission) and serve on the Respondent materials in support of an extension of time for the lodgement of her application for an unfair dismissal remedy. The directions required the Applicant to file this material by 2 March 2015.

[3] On 5 March 2015, the Commission received correspondence from the Applicant. On the face of the material, it did not appear to address why the Applicant should be granted an extension of time for the lodgement of her application for an unfair dismissal remedy.

[4] On 4 March 2015, the Respondent filed an application which sought the dismissal of the Applicant’s application pursuant to section 399A of the Act on the basis of non-compliance with the Commissions directions made on 10 February 2015. The Respondent based their objection on the following grounds:

(a) Ms O’Neil lodged an Application under s.394 alleging that the termination of her employment by FMP was unfair. U2015/2405. The Application was lodged 12 days over the 21 day required time period. The Respondent advised that it had a jurisdictional objection to the Application;

(b) An Extension of Time conference/hearing was scheduled for the 24^th of March 2015;

(c) The Directions issued by the Fair Work Commission on 10 February 2015 required that the Applicant lodge with the Fair Work Commission and serve upon the Respondent submissions, witness statements and other documentary material relevant to an Application by no later than noon on Monday the 2^nd of March 2015;

(d) At the time of the preparation of this Application (post noon on Wednesday the 4^th of March 2015) no submissions, witness statements and other documentary material relevant to an Application has been received by the Respondent; and

(e) Directions issued by the Fair Work Commission on 10 February 2015 require that the Respondent submit its material re the Extension of Time issue by noon on Monday the 16^th of March 2015. The Respondent does not wish to be put to the expense and inconvenience of preparing material in the absence of action by the Applicant that supports that the Application is still being pursued.

[5] On 10 March 2015, the Applicant was sent correspondence informing her of the Respondent’s section 399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by 4:00pm, Friday 13 March 2015. The Applicant was advised that if she failed to comply with this direction, her application would be dismissed.

[6] The Applicant did not file any material with the Commission.

[7] 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.

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

[9] As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[10] After considering all the material I am satisfied that the Applicant unreasonably failed to comply with directions of the Commission relating to her application and that, consequently, the Applicant’s application for a remedy from unfair dismissal should be dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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