Rachel Morales v Commonwealth of Australia as represented by the Department of Education

[2014] FWC 4296

[2014] FWC 4296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachel Morales
v
Commonwealth of Australia as represented by the Department of Education
(U2014/5268)

COMMISSIONER DEEGAN CANBERRA, 27 JUNE 2014

Application for relief from unfair dismissal.

[1] On 5 March 2014, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms Rachel Morales (the applicant). The applicant’s employment had been terminated by the Commonwealth of Australia as represented by the Department of Education.

[2] The matter was listed for a conciliation on 16 April 2014 which did not take place. The matter was relisted for a conciliation on 29 April 2014 which did not resolve the matter. Consequently, directions were issued and the matter was listed for hearing.

[3] The applicant was directed to file an outline of submissions, witness statements and any other documentary material she wished to rely on by close of business on 11 June 2014.

[4] The applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before me on 27 June 2014. Multiple attempts were made by my Chambers to contact the applicant by telephone. Messages were left requesting the applicant call the Commission as a matter of urgency. The telephone calls were not returned.

[5] Prior to the non compliance hearing, the respondent made an application pursuant to s.399A of the Act for the matter to be dismissed as the applicant had failed to comply with a direction of the Commission on 25 June 2014. At 7:57pm on 25 June 2014, the applicant sent a two line email to Chambers that asking what the process was as she could not make the hearing. My Chambers sent an email in response to the applicant’s email, that indicated that if she was seeking an adjournment of the hearing she would need to provide more information to support the request. The applicant was also advised that if no further communication was received from her and she did not attend the non compliance hearing, the s.399A application would be decided on the basis of the submissions made by the respondent at the hearing.

[6] The applicant failed to attend the non compliance hearing.

[7] 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.

[8] The employer has made the relevant application for the substantive application to be dismissed in accordance with s.399A(2) of the Act. I am satisfied that the applicant has unreasonably failed to comply with the direction to file an outline of submissions and witness statements as, despite repeated attempts by my Chambers to contact her, she has not returned a single call and has proffered no reasons for her non compliance.

[9] After considering the submissions of the respondent made at the hearing, I have decided to dismiss the application for remedy from unfair dismissal pursuant to s.399A of the Act. An order [PR552522] giving effect to this decision will issue separately.

Appearances:

No appearance for the applicant.

Mr A Grinsel-Jones for the respondent.

Hearing details:

2014.

Canberra:

June 27.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR552525>