Raphael Piacente v St Michael's Uniting Church

[2015] FWC 138

[2015] FWC 138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raphael Piacente
v
St Michael’s Uniting Church
(U2014/13249)

COMMISSIONER CRIBB MELBOURNE, 8 JANUARY 2015

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

[1] An application, under section 394 of the Fair Work Act 2009 (the Act), was made by Ms Raphael Piacente (the Applicant) on 14 October 2014. Ms Piacente’s employment ended with St Michael’s Uniting Church (the Respondent) on 1 September 2014.

[2] Two jurisdictional objections were raised by the Respondent on 23 October 2014. They were that the application is out of time and also that the business is a small business and that the dismissal was consistent with the Small Business Fair Dismissal Code. The jurisdictional objections were set down for hearing on Friday, 12 December 2014.

[3] Ms Piacente was directed to file an outline of submissions and any witness statements and other documentary material she wished to rely on by 14 November 2014 (extension of time application) and by 28 November 2014 (Small Business Fair Dismissal Code). Prior to the scheduled hearing, Ms Piacente had been telephoned and e-mailed by the Fair Work Commission (the Commission) requesting confirmation that she intended to continue with her application. No response was received and Ms Piacente failed to comply with the directions to file material by 14 November 2014 and 28 November 2014. Further, the Commission attempted to call Ms Piacente on 11 December 2014 to ascertain if she still wished to proceed with her application.

[4] On 10 December 2014, the Respondent made a written application, under section 399A of the Act, to have the application dismissed due to the Ms Piacente’s failure to comply with the directions of the Commission.

[5] On 22 December 2014, correspondence was sent to Ms Piacente, by the Commission, directing her to file and serve submissions providing reasons why the Commission should not dismiss her application. This material was to be provided by no later than close of business on Tuesday, 6 January 2015. The letter also advised Ms Piacente that failure to comply with this direction would result in her application being dismissed.

[6] Ms Piacente did not file any material with the Commission by the due date.

[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] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As Ms Piacente did not file any material in opposition to the application to dismiss, by the Respondent, I have decided to determine the application on the papers.

[9] After considering all of the material, pursuant to section 399A(1)(b) of the Act, I have decided to dismiss Ms Piacente’s application for an unfair dismissal remedy.

[10] An order 1 giving effect to this decision will be issued today.

 1   PR559796

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<Price code A, PR559795>