Rachael Ferraro v Australian Way Pty Ltd T/A Australian Way

[2018] FWC 4009

[2018] FWC 4009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachael Ferraro
v
Australian Way Pty Ltd T/A Australian Way
(U2018/3484)

COMMISSIONER BISSETT SYDNEY, 6 JULY 2018

Application for an unfair dismissal remedy.

[1] On 4 April 2018, Ms Rachael Ferraro made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Ferraro said her employment had been terminated by Australian Way Pty Ltd (Australian Way) on 3 April 2018.

[2] The matter was listed for conciliation on 7 May 2018, however it could not proceed as Ms Ferraro could not be contacted. Consequently, on 15 May 2018, directions were issued to the parties and the matter was listed for hearing. Ms Ferraro was directed to file her material by no later than noon on 4 June 2018 and Australian Way was to file its material by no later than noon on 25 June 2018.

[3] In the afternoon of 4 June 2018, the Commission attempted to telephone Ms Ferraro regarding her overdue submissions. This was unsuccessful and a voicemail message was left seeking a return call.

[4] On 5 June 2018, email correspondence was sent to Ms Ferraro regarding her overdue submissions. This email advised that if the Commission did not receive her submissions or an extension request by noon on 6 June 2018, the matter would be listed for a non-compliance hearing on 8 June 2018.

[5] On 6 June 2018, a further voicemail message was left for Ms Ferraro requesting a return call. A Notice of Listing was then sent to parties confirming the scheduling of a non-compliance hearing on 8 June 2018. The Notice of Listing was sent to Ms Ferraro via email and express post. The express post tracking ID indicates delivery was made on 7 June 2018.

[6] The non-compliance hearing proceeded before Deputy President Masson on 8 June 2018. Ms Ferraro could not be contacted. Australian Way made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Ferraro’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Australian Way’s oral application.

[7] On 12 June 2018, correspondence was sent to Ms Ferraro, via email and post, advising her of Australian Way’s s.399A application. Ms Ferraro was directed to file submissions and other documentary material as to why the Commission should not dismiss her application by close of business on 19 June 2018.

[8] On 19 June 2018, a final attempt to contact Ms Ferraro by telephone was made, however this was unsuccessful and a voicemail message was left.

[9] To date, Ms Ferraro has not filed 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 Ferraro did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Ferraro has failed to respond to numerous attempts made by the Commission to contact her. Apart from initially filing her application, Ms Ferraro has shown no willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with directions or her failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Ferraro’s application.

[14] An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR608786>