Paula Ann Smith v St John of God

[2022] FWC 733

[2022] FWC 733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paula Ann Smith
v

St John of God

(U2021/10998)

DEPUTY PRESIDENT BINET PERTH, 5 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 30 November 2021, Ms Paula Smith (Ms Smith) 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 St John of God (St John).

1. On 14 December 2021, St John filed a Form F3 - Employer response to unfair dismissal application raising the jurisdictional objection that Ms Smith’s employment did not meet the minimum employment period (Jurisdictional Objection).

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

1. Directions were issued to parties on 18 March 2022 which required Ms Smith to file her materials in relation to the merit of the Application by 25 March 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

1. Ms Smith failed to file any materials in accordance with the Directions.

1. On 28 March 2022, Chambers wrote to Ms Smith and reminded her that her materials in relation to the merits of her application were overdue.

1. On 29 March 2022 St John made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms Smith had failed to comply with the Directions (Dismissal Application).

1. Ms Smith was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on Thursday 31 March 2022. Chambers advised Ms Smith that if she did not file submissions and evidence by 4pm Thursday 31 March 2022 the Application would be dismissed pursuant to section 399A of the FW Act.

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 Smith by 4pm Thursday 31 March 2022, or since.

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 Smith 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 Smith has still not filed any materials in support of her Application or in response to the Dismissal Application. I am satisfied that Ms Smith has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of St John and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

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

DEPUTY PRESIDENT

[1] Print PR739933

Printed by authority of the Commonwealth Government Printer

<PR739931>