Ms Lea-Anne Whalan v Anglican Schools Corporation

[2017] FWC 5374

[2017] FWC 5374

FAIR WORK COMMISSION

DECISION

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

Ms Lea-Anne Whalan
v
Anglican Schools Corporation
(U2017/5523)

COMMISSIONER JOHNS SYDNEY, 17 OCTOBER 2017

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

[1] On 24 May 2017 Ms Lea-Anne Whalan (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). Ms Whalan alleged her employment had been terminated unfairly by Anglican Schools Corporation (respondent) on 12 May 2017.

[2] The respondent raised an objection to the Commission hearing and determining the matter on the basis that the applicant’s employment does not meet the minimum employment period and the application had incorrectly named the respondent as Craig Mansor T/A Macquarie Anglican Grammar School (objections).

[3] Consequently, the matter was listed for jurisdictional hearing by telephone for 21 August 2017.

[4] On 8 June 2017 the applicant emailed the Commission and filed submissions relating to the objections raised by the respondent.

[5] On 6 July 2017 the respondent emailed the Commission responding to the applicant’s submissions. In that correspondence the respondent asserted that the applicant had not completed the minimum employment period of six months as required by s.383(a) of the Act.

[6] On 21 August 2017 the matter proceeded to jurisdictional hearing. Ms Clair Bailey from the Association of Independent Schools - NSW, appeared for the respondent. The applicant made no appearance. Attempts were made to contact the applicant via telephone. The applicant did not answer those phone calls, nor did she return those phone calls.

[7] At the jurisdictional hearing, the name of the respondent was amended to be Anglican Schools Corporation (ABN 63544529806).

[8] As a result of the applicant’s failure to attend the Commission, the respondent made an application at the jurisdictional hearing that the Commission exercise its discretion under s.399A(1) of the Act to dismiss the application on the basis of the applicant’s failure to attend the Commission.

[9] On 24 August 2017 Directions were issued informing the applicant of the respondent’s s.399A application. The Directions noted the applicant’s failure to attend the Commission for the jurisdictional hearing. The applicant was directed to lodge her reasons for her non-attendance by 4 September 2017. The applicant was advised that if she failed to comply with this Direction, her application would be dismissed.

[10] The applicant did not file any material in response to the above Direction.

[11] 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.”

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

[13] Because Ms Whalan did not file any material in opposition to the application to dismiss her application for unfair dismissal remedy, I will determine the application on the papers.

[14] After considering all the material, Ms Whalan’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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