Nadine Ashlin v Geeveston ExServicemens and Womens Club T/A Geeveston ExServicemens and Womens Club

[2014] FWC 4404

[2014] FWC 4404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nadine Ashlin
v
Geeveston ExServicemens and Womens Club T/A Geeveston ExServicemens and Womens Club
(U2014/4356)

COMMISSIONER WILSON MELBOURNE, 3 JULY 2014

Application for relief from unfair dismissal.

[1] On 5 February 2014, Ms Nadine Ashlin made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Ashlin’s employment had been terminated by Geeveston ExServicemens and Womens Club T/A Geeveston ExServicemens and Womens Club (GEWC) on 22 January 2014.

[2] The matter was listed for conciliation on 21 March 2014, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Ashlin was directed to file an outline of submissions, witness statements and other documentary material she wished to rely on by noon, on 19 May 2014.

[4] Ms Ashlin did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Gooley on 10 June 2014.

[5] Ms Ashlin did not attend the non compliance hearing. GEWC made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Ashlin had failed to comply with the direction of the Fair Work Commission (the Commission). The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted GEWC’s oral application.

[6] On 10 June 2014, Ms Ashlin was sent correspondence informing her of the Respondent’s s.399A application. Ms Ashlin was directed to file submissions and other documentary material in respect of GEWC’s application by close of business, on 24 June 2014. Ms Ashlin was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Ashlin did not file any material with the Commission.

[8] 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.

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

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

[11] After considering all the material, Ms Ashlin’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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