Olivia Massey v The Beauty House

[2013] FWC 6007

[2013] FWC 6007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Olivia Massey
v
The Beauty House
(U2013/8106)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 AUGUST 2013

Application for relief from unfair dismissal dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 2 April 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms Olivia Massey (the Applicant). The Applicant’s employment had been terminated by The Beauty House (the Respondent) on 12 March 2013.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, 22 July 2013.

[4] The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before Commissioner Wilson on 2 August 2013.

[5] The Applicant failed to attend the non compliance hearing. The Respondent made an application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with the direction of the Fair Work Commission (the Commission). Commissioner Wilson waived compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[6] On 2 August 2013, the Applicant was sent correspondence informing her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 16 August 2013. The Applicant was advised that if she failed to comply with this direction, her application would be dismissed.

[7] On 5 August 2013, the Applicant emailed the Commission and advised that she no longer wanted to prosecute the application. The Commission requested that the Applicant file a Form F50 - Notice of Discontinuance.

[8] The Applicant did not file any material or a Form F50 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.

Note 1: For another 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.

[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 the Applicant did not file any material in opposition to the application to dismiss and advised that she no longer wished to prosecute her claim, I have decided to determine the application on the papers.

[12] After considering all the material, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal as she failed to comply with the Commission’s direction. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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