Ms Letitia Lyn Hunt-Warden v Pilbara Manganese Pty Ltd

[2022] FWC 1557

[2022] FWC 1557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Letitia Lyn Hunt-Warden
v

Pilbara Manganese Pty Ltd

(U2022/1216)

DEPUTY PRESIDENT BINET PERTH, 23 JUNE 2022

Application for an unfair dismissal remedy. Application to dismiss pursuant to s 399A of the Fair Work Act 2009 (Cth).

1. On 27 January 2022, Ms Letitia Lyn Hunt-Warden (Ms Hunt-Warden) 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 Pilbara Manganese Pty Ltd (Pilbara Manganese).

1. On 16 February 2022, Pilbara Manganese filed a Form F3 - Employer response to unfair dismissal application.

1. On 4 March 2022, the matter was listed for a Staff Conciliation via telephone but was unable to proceed. The Staff Conciliator telephoned Ms Hunt-Warden twice, left voice messages and sent an email. No response was received from Ms Hunt-Warden.

1. The Application was subsequently allocated to my Chambers for determination.

1. Directions were issued to parties on 24 May 2022 which required Ms Hunt-Warden to file her materials in relation to the merit of the Application by 4pm (AWST) Thursday 2 June 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

1. Ms Hunt-Warden failed to file any materials in accordance with the Directions.

1. On Thursday 2 June 2022, Chambers wrote to Ms Hunt-Warden and reminded her that her materials in relation to the merits of her application were overdue.

1. On Friday 3 June 2022 Pilbara Manganese made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms Hunt-Warden failed to comply with the Directions (Dismissal Application).

1. On Friday 3 June 2022 Ms Hunt-Warden was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Wednesday 8 June 2022. Chambers advised Ms Hunt-Warden that if she did not file submissions and evidence by 4pm (AWST) Wednesday 8 June 2022 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 Hunt Warden by 4pm (AWST) Wednesday 8 June 2022, or since.

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 Hunt-Warden 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 Hunt-Warden has still not filed any materials in support of the Application or in response to the Dismissal Application. Ms Hunt-Warden 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 Hunt-Warden has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Pilbara Manganese 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] was issued by the FWC on 9 June 2022.

DEPUTY PRESIDENT

[1] Print PR742495.

Printed by authority of the Commonwealth Government Printer

<PR742828>