Ms Sonja Armstrong v The Ashley Hotel

[2015] FWC 3620

[2015] FWC 3620

FAIR WORK COMMISSION

DECISION

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

Ms Sonja Armstrong
v
The Ashley Hotel
(U2015/3244)

COMMISSIONER WILSON MELBOURNE, 28 MAY 2015

Application for relief from unfair dismissal - application dismissed pursuant to section 399A of the Act.

[1] On 19 February 2015, Ms Sonja Armstrong made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The date Ms Armstrong’s employment had been terminated by The Ashley Hotel is disputed by the parties. Ms Armstrong’s unfair dismissal application states she was dismissed on an unspecified date in April 2011, whereas the Respondent alleges dismissal took effect on 16 March 2011. Regardless of which specific date Ms Armstrong was dismissed, on a reading of either of the dates put forward by the parties, the application was lodged with the Fair Work Commission significantly outside of the required 21 day time period for the lodgement of an unfair dismissal application provided for under s.394(2)(a) of the Act.

[2] Consequently, Directions were issued to the parties on 19 March 2015 and the matter was listed for hearing to determine whether an extension of time for the lodging of the application should be made. The hearing was listed for 17 April 2015.

[3] Ms Armstrong was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, 30 March 2015.

[4] Ms Armstrong did not comply with this direction. On 14 April 2015, my Associate telephoned the Applicant seeking an explanation for the non compliance with the directions. The consequence of the telephone conversation was that Ms Armstrong requested an adjournment of proceedings on medical grounds, with the Applicant advising such a request had been posted to the Fair Work Commission. I note that to date no such written request has been received by me.

[5] Ms Armstrong’s verbal request was granted by me on 16 April 2015. Amended Directions were issued by my Chambers on 16 April, requiring Ms Armstrong to file an outline of submissions, any witness statements and other documentary material by close of business on 4 May 2015.

[6] Ms Armstrong again failed to comply with the Amended Directions issued by the Commission. On 6 May 2015, the Respondent filed an application to dismiss Ms Armstrong’s unfair dismissal application pursuant to s.399A of the Act, basing their application on the grounds that the Applicant had failed to comply with the Directions of the Commission of 19 March 2015 and 16 April 2015, respectively

[7] On 11 May 2015, Ms Armstrong was sent correspondence informing her of the Respondent’s s.399A application. Ms Armstrong was directed to file submissions and other documentary material in respect of The Ashley Hotel’s application by close of business, 25 May 2015. Ms Armstrong was advised that if she failed to comply with this direction, her application for unfair dismissal remedy would be dismissed.

[8] Ms Armstrong did not file any material with the Commission.

[9] 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.

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

[11] As Ms Armstrong did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] After considering all the material, Ms Armstrong’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued in conjunction with this decision.

COMMISSIONER

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