Ms Sandrine Heitzmann v Australian Vanlines Pty Ltd

[2016] FWC 2464

[2016] FWC 2464

FAIR WORK COMMISSION

DECISION

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

Ms Sandrine Heitzmann
v
Australian Vanlines Pty Ltd
(U2013/13591)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 APRIL 2016

Application for relief from unfair dismissal; failure to comply with directions of the Commission; application dismissed.

[1] On 14 September 2013, Ms Heitzmann (Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant’s employment had been terminated by Australian Vanlines Pty Ltd (Respondent) on 27 August 2013.

[2] On 25 October 2013, the matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by 12.00pm, on 24 March 2014.

[4] The Applicant filed her material with the Fair Work Commission (Commission) on 24 March 2014.

[5] The matter was listed for hearing on 5 May 2014.

[6] The Applicant’s representative notified the Commission in an email dated 3 May 2014 that the parties had reached an in principle agreement, and as a consequence requested that the hearing be vacated.

[7] On 15 July 2014, the Commission was notified via email from the Applicant’s representative that settlement had collapsed. The Applicant’s representative requested that the matter be relisted for hearing.

[8] The matter was listed for Mention before me on 28 July 2014 during which the parties reached an agreement.

[9] On 5 September 2014, the parties were advised that the file would remain open until a Notice of Discontinuance had been filed in the Commission. The parties were requested to provide an update as to the progress of the matter as the file could not remain open indefinitely.

[10] Correspondence was sent to the parties on 21 January 2015 and 17 June 2015 requesting an update on the progress of the matter.

[11] Neither party complied with the direction of the Commission.

[12] On 23 June 2015, the Applicant’s representative filed a Notice of representative ceasing to act.

[13] A letter was sent to the Applicant via email and mail on 28 July 2015 requesting that she advise the Commission whether she still wished to pursue her application. The Applicant was advised that failure to reply by close of business, on 28 August 2015 could result in her matter being struck out due to non compliance with the Commission’s directions pursuant to s.399A of the Act.

[14] The Applicant again failed to comply with the Commission’s directions.

[15] A final email was sent to the Applicant on 12 November 2015 requesting that she advise the Commission whether she still wished to pursue her application. The Applicant was advised that failure to reply by 5.00pm, on 19 November 2015 could result in her matter being dismissed due to non compliance with the Commission’s directions pursuant to s.399A of the Act.

[16] 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.”

[17] The Applicant has provided no explanation for her failure to comply with directions and respond to the various correspondences to which earlier reference has been made. I am satisfied that her failure to comply is unreasonable.

[18] The power to dismiss an application if the non compliance was unreasonable is discretionary.

[19] The Applicant has failed to respond to the many attempts by the Commission to contact her. She has failed to respond to all correspondence in relation to whether she still wanted to pursue her application. She has shown no willingness to pursue her unfair dismissal application. In those circumstances, I will dismiss the application. An order giving effect to this decision is separately issued in PR579214.

DEPUTY PRESIDENT

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