Oliver v the High Tea Company

[2016] FWC 354

[2016] FWC 354

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Miss Katie Oliver
v
The High Tea Company T/A The Tea Salon Melbourne
(U2015/12614)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 20 JANUARY 2016
Application for relief from unfair dismissal.

[1]        On 5 November 2015, Miss Katie Oliver made an application for remedy for unfair

dismissal under section 394 of the Fair Work Act 2009 (the Act). Miss Oliver’s employment

had been terminated by The High Tea Company T/A The Tea Salon Melbourne on

20 October 2015.

[2]        In the employer response The Tea Salon stated that Miss Oliver’s employment had not

been terminated and that she has resigned from her employment. The Tea Salon objected to

Ms Oliver’s application on this basis and requested that their objection be dealt with by the

Commission prior to any conciliation.

[3]        Consequently, directions were issued and the matter was listed for hearing.

[4]        Ms Oliver was directed to file an outline of submissions, any witness statements and

other documentary material she wished to rely on by noon, on Monday, 14 December 2015.

[5]        On 14 December 2015, Commission staff attempted to contact Ms Oliver to confirm

that materials in support of her application were due to be filed that day.

[6]        Ms Oliver did not comply with the Commission’s directions.

[7]        On 15 December 2015, The Tea Salon filed an objection to the application and sought

the dismissal of Ms Oliver’s application. The Tea Salon based their objection on grounds

which included failure to comply with directions.

[8]        On 16 December 2015, Ms Oliver was sent correspondence informing her of The Tea

Salon’s section 399A application. Ms Oliver was directed to file submissions and other

documentary material in respect of The Tea Salon’s application by close of business, on

Tuesday, 29 December 2015. Ms Oliver was advised that if she failed to comply with this

direction, her application would be dismissed.

[9]        Ms Oliver did not file any material with the Commission.

[2016] FWC 354

[10]      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.

[11]      Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act.

[12]      As Ms Oliver did not file any material in opposition to the application to dismiss, I

will determine the application on the papers.

[13]      As Ms Oliver has provided no explanation for her failure to comply with directions, I

find that her failure was unreasonable.

[14]      The power to dismiss an application if the non-compliance was unreasonable is

discretionary. Ms Oliver has failed to respond to the many attempts by the Commission to

contact her. She has shown no willingness to prosecute her case. In those circumstances, I will

exercise my discretion and dismiss Ms Oliver’s application. An order giving effect to this

decision will be issued today.

DEPUTY PRESIDENT

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