Rachael Aarts v The Trustee for Peter Wrigley Family Trust T/A Carolans First National Real Estate

[2016] FWC 687

[2016] FWC 687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachael Aarts
v
The Trustee for Peter Wrigley Family Trust T/A Carolans First National Real Estate
(U2015/13617)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 14 October 2015, Ms Rachael Aarts made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Aarts’ employment had been terminated by The Trustee for Peter Wrigley Family Trust T/A Carolans First National Real Estate on 23 September 2015.

[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] Ms Aarts was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 11 January 2016.

[4] On 13 January 2016, the Commission contacted Ms Aarts’ representative regarding the filing of her materials. By email on 13 January 2016, Ms Aarts’ representative filed a Form F54 Notice of representative ceasing to act in relation to her application.

[5] On 13 January 2016, the Commission attempted to contact Ms Aarts regarding her submissions and voice messages were left requesting that she contact the Commission and that the matter would be listed for a non compliance hearing.

[6] The matter was listed for a non compliance hearing before me on 15 January 2016.

[7] Ms Aarts did not attend the non compliance hearing. Carolans First National made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Aarts had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Carolans First National’s oral application.

[8] On 18 January 2016, Ms Aarts was sent correspondence informing her of Carolans First National’s section 399A application. Ms Aarts was directed to file submissions and other documentary material in respect of Carolans First National’s application by close of business, on 29 January 2016. Ms Aarts was advised that if she failed to comply with this direction, her application would be dismissed.

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

[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 Aarts did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] As Ms Aarts 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 Aarts 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 Aarts’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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