Ms Rachel Greeley v SRG Leisure Retail Pty Ltd

[2021] FWC 2810

[2021] FWC 2810

FAIR WORK COMMISSION

DECISION

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

Ms Rachel Greeley
v
SRG Leisure Retail Pty Ltd
(U2021/1977)

COMMISSIONER O'NEILL MELBOURNE, 17 MAY 2021

Application for an unfair dismissal remedy – application dismissed pursuant to s 399A of the Act

[1] Ms Rachel Greeley lodged an unfair dismissal application in the Fair Work Commission on 10 March 2021.

[2] The application was listed for conciliation on 30 March 2021. The conciliation was re-listed for 7 April 2021 following an adjournment request by the Applicant’s representative. Ms Greeley was unable to be contacted at the commencement of the conciliation and it did not proceed.

[3] The application was then listed for mention before me on 22 April 2021. My Associate contacted the Applicant on the morning of the mention and Ms Greeley confirmed she would be attending. However, at the commencement of the mention, my Associate was unable to contact Ms Greeley or her representative.

[4] On 22 April 2021, I issued directions requiring Ms Greeley to file and serve submissions and evidence by Thursday 6 May 2021 and issued a notice of a further mention/directions hearing on Friday 7 May 2021.

[5] No materials were filed by Ms Greeley. An email was sent by my chambers on 6 May 2021 to the Applicant and her representative regarding this non-compliance. Shortly after my Chambers received a phone call from Ms Greeley’s representative explaining that she had not heard from the Applicant since 22 April 2021.

[6] At the commencement of the mention/hearing on 7 May 2021, my Associate attempted to contact Ms Greeley without success. There was no appearance on behalf of the Applicant nor did the Commission receive any communication from or on behalf of the Applicant between the mention on 22 April 2021 and 7 May 2021.

[7] At the mention/hearing, the Respondent orally applied to dismiss Ms Greeley’s application pursuant to s 399A of the Act. I exercised my discretion under s 586 of the Act and waived the requirement that the application be in writing in the appropriate form. I am satisfied that there has been an application by the employer in accordance with s 399A(2) of the Act.

[8] On the same day, Ms Greeley was informed of the Respondent’s application and advised that her application may be dismissed without further notice should she fail to respond by Friday 14 May 2021. No response has been received.

[9] I am satisfied that Ms Greeley has unreasonably failed to comply with the direction issued on 22 April 2021 and unreasonably failed to attend the mention/hearing on 7 May 2021 in relation to her unfair dismissal application. Ms Greeley has taken no steps since at least 22 April 2021 to demonstrate that she wishes to pursue her unfair dismissal application against the Respondent.

[10] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Ms Greeley’s unfair dismissal application.

COMMISSIONER

Appearances:

W O’Donnell and N Cramp for the Respondent

Hearing details:

2021

Melbourne (by telephone):

May 7

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