Ms Kimberley Melville v Baldivis Emergency Vets Pty Ltd

[2024] FWC 1861

[2024] FWC 1861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Kimberley Melville
v

Baldivis Emergency Vets Pty Ltd

(U2024/6695)

DEPUTY PRESIDENT BINET PERTH, 16 JULY 2024

Application for an unfair dismissal remedy

1. On 9 June 2024, Ms Kimberley Melville (Ms Melville) 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 Baldivis Emergency Vets Pty Ltd (Baldivis Emergency Vets).

1. On 21 June 2024, Baldivis Emergency Vets filed a Form F3 - Employer response to unfair dismissal application raising the Jurisdictional Objection that the Application is out of time and Ms Melville was not dismissed.

1. On 26 June 2024, the Application was allocated to my Chambers for determination.

1. Directions were issued to parties on 28 June 2024 (Directions).  The Directions required Ms Melville to file by 4pm (AWST) Monday 8 July 2024 her materials in relation to the question of whether the FWC should grant her an extension of time to file the Application. The parties were advised that compliance with the Directions was mandatory.

1. Ms Melville failed to file the materials by the required date and time as set out in the Directions.

1. On 9 July 2024, Chambers wrote to Ms Melville and reminded her that her materials in relation her application for an extension of time were overdue.

1. On 11 July 2024, Baldivis Emergency Vets made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms Melville failed to comply with the Directions (Dismissal Application).

1. On 11 July 2024, Ms Melville was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Monday 15 July 2024. Chambers advised Ms Melville that if she did not file any such submissions or evidence by 4pm (AWST) Monday 15 July 2024, the Application would be dismissed pursuant to section 399A of the FW Act.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Ms Melville by 4pm (AWST) Monday 15 July 2024.

1. 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.”

1. Ms Melville failed to file the materials she was directed to file by the dates specified in the Directions. As at the date of this decision, Ms Melville has still not filed any materials in support of the Application or in response to the Dismissal Application. Ms Melville has not sought an extension to file her materials in support of the Application or in response to the Dismissal Application. I am satisfied that Ms Melville has unreasonably failed to comply with directions of the FWC relating to this Application. On the application of Baldivis Emergency Vets and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application.

1. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Print PR777046.

Printed by authority of the Commonwealth Government Printer

<PR777045>