Ms Yolanta Fazekas v Star Gardens Aged Living

[2014] FWC 4542

[2014] FWC 4542

FAIR WORK COMMISSION

DECISION

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

Ms Yolanta Fazekas
v
Star Gardens Aged Living
(U2014/4123)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 JULY 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time - Application dismissed.

[1] On 30 January 2014 an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 was made by Ms Yolanta Fazekas (the Applicant) in relation to her dismissal by Star Gardens Aged Living (the Respondent). Ms Fazekas states in the Form F2 Application for an unfair dismissal remedy that she was dismissed on 27 November 2013 and that the dismissal took effect on that date. The application was made on 30 January 2014, some 43 days outside the time required in s.394(2) of the Act.

[2] A conciliation conference was listed on 12 March 2014. The Respondent attended and the Applicant was uncontactable. The Conciliator’s Report indicates that unsuccessful attempts were made to contact the Applicant on the number provided in the application, and to an alternative number provided by the Respondent.

[3] The Applicant’s husband contacted the Commission by telephone on several occasions indicating that she had been in hospital undergoing cancer surgery. The Applicant’s husband also requested that the matter not be relisted until Ms Fazekas had recovered from her surgery.

[4] The matter was allocated to the Commission as presently constituted for hearing. Directions were issued requiring the Applicant to file and serve submissions and witness statements in relation to whether the Commission should grant an extension of time by 16 May 2014. The Respondent was also directed to file and serve submissions and witness statements in reply to the Applicant’s material by 30 May 2014.

[5] The Applicant has not complied with the Directions and no submissions or witness statements have been received from the Applicant. Further, the Applicant has not corresponded with the Commission to explain her failure to comply with the Directions or to seek an extension of time in which to do so.

[6] On 18 June 2014 the following correspondence was sent to the Applicant’s postal address:

“Please find attached a copy of Directions issued in relation to your application made pursuant to s.394 of the Fair Work Act 2009 (the Act). The Directions were sent to your postal address on 2 May 2014.

The Directions required Submissions and Witness Statements to be provided by 4.00pm on 16 May 2014. You failed to comply with those Directions. You also failed to advise the Registry or my Associate (or the Respondent) whether you would be continuing with your application.

If I do not receive a response from you by 5.00pm Friday, 27 June 2014 indicating that you wish to proceed and providing a reasonable excuse for your failure to comply with the Directions, yourapplication will be dismissed under s.587 of the Act.

Your response can be emailed to [e-mail], faxed to [phone], or posted to the Fair Work Commission, GPO Box 5713, Brisbane, Qld, 4001.

Should you decide that you no longer wish to proceed with your application, you are requested to sign and date the attached Notice of Discontinuance and return it to this office at your earliest convenience.”

[7] The Applicant has not responded to this correspondence. In the Form F2, the Applicant stated that there were delays obtaining paperwork from the Respondent and that she had been in and out of hospital and attending Doctors appointments. The Applicant has provided no further information or evidence in relation to the circumstances which prevented her from filing her application within the required time. I am unable to be satisfied that there are exceptional circumstances taking into account the matters in s.394(3).

[8] In all of the circumstances I am satisfied that the application has no reasonable prospects of success and that it should be dismissed in accordance with s.587(c) of the Act. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR552865>