Ms Leonia Vaili v The Veals Pty Ltd

[2019] FWC 266

[2019] FWC 266

FAIR WORK COMMISSION

DECISION

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

Ms Leonia Vaili
v
The Veals Pty Ltd
(U2018/8550)

COMMISSIONER RIORDAN SYDNEY, 22 JANUARY 2019

Application for an unfair dismissal remedy.

[1] Ms Leonia Vaili (the Applicant) lodged an unfair dismissal application with the Fair Work Commission (the Commission) on 20 August 2018.

[2] Ms Vaili was employed by The Veals Pty Ltd t/a Orielton Takeaway (the Respondent) between November 2016 and August 2018.

[3] A notice of listing was issued on 17 October 2018 advising that the matter was listed for Conference and Directions by telephone on 22 October 2018. Ms Vaili failed to participate in the teleconference. The Respondent was represented by Ms Veal.

[4] On 23 October 2018 a formal letter was emailed to the Applicant in relation to her non-attendance. The Applicant failed to respond to this correspondence.

[5] On 13 December 2018, a further email was sent to the Applicant advising that she was requested to reply to the correspondence issued by the Commission on 23 October 2018 but had failed to comply. The Applicant was given a further seven days to respond and was advised that, failure to do so, may lead to her application being dismissed.

[6] To date, the Commission has not received any correspondence or a return phone call from Ms Vaili.

Relevant legislation

[7] Section 399A of the Fair Work Act, 2009 (the Act) states:

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.

[8] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Conclusion

[9] Ms Vaili has failed to comply with any of the Directions given by the Commission.

[10] After considering all circumstances in this matter, I have decided to dismiss Ms Vaili’s unfair dismissal application in accordance with section 587(3)(a).

[11] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR703911>