Ms Wendy Charlesworth v SC Care Pty Ltd

[2022] FWC 938

[2022] FWC 938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Wendy Charlesworth

v

SC Care Pty Ltd

(U2022/315)

DEPUTY PRESIDENT BINET PERTH, 22 APRIL 2022

Application for an unfair dismissal remedy - Application by the Respondent pursuant to s 399A of the Fair Work Act – Application dismissed.

1. On 4 January 2022, Ms Wendy Charlesworth (Ms Charlesworth) 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 SC Care Pty Ltd (SC Care).

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

1. A Notice of Listing was issued to parties on 6 April 2022 which required Ms Charlesworth to attend a conciliation conference at 9am (AWST) Tuesday 12 April 2022 (Direction).

1. On 12 April 2022, Chambers endeavoured to contact Ms Charlesworth by telephone on two occasions and by email once using the contact details in her application alerting her that the conference was ready to commence and that she should urgently contact Chambers.  Ms Charlesworth did not answer either call and did not respond to the email.

1. On 12 April 2022 SC Care made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms Charlesworth had failed to comply with the Direction (Dismissal Application).

1. At 12:18 of 12 April 2022 Ms Charlesworth was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on Thursday 14 April 2022. Chambers advised Ms Charlesworth that if she did not file submissions and evidence by 4pm Thursday 14 April 2022 the Application would be dismissed pursuant to section 399A of the FW Act.

1. Ms Charlesworth was warned that if she did not file submissions and evidence by 4pm (AWST) Thursday 14 April 2022 her application for relief from unfair dismissal would be dismissed.  

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 Charlesworth by 4pm Thursday 14 April 2022.

1. On 19 April 2022 the parties were advised that the Application had been dismissed.

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 Charlesworth 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 Charlesworth has still not filed any materials in support of her Application. 

1. Ms Charlesworth failed to file the materials she was directed to file in response to the Dismissal Application by 19 April 2022. I am satisfied that Ms Charlesworth has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of SC Care and in the exercise of my discretion under section 399A of the FW Act these are the reasons why I decided to dismiss the Application.

1. An Order to this effect will be issued with this decision.[1]

DEPUTY PRESIDENT

[1] Print PR740610

Printed by authority of the Commonwealth Government Printer

< PR740609>