Sarah Maynard v Australian Family Care Pty Ltd T/A Salisbury Family Care

[2015] FWC 3338

[2015] FWC 3338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Maynard
v
Australian Family Care Pty Ltd T/A Salisbury Family Care
(U2015/568)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 19 MAY 2015

Application for relief from unfair dismissal - application dismissed - section 399A application.

[1] This decision deals with an application to dismiss an unfair dismissal application pursuant to s.399A of the Fair Work Act 2009 (the FW Act). On 11 February 2015 Ms Maynard lodged an application pursuant to s.394 of the FW Act, through which she sought relief with respect to the termination of her employment by Australian Family Care Pty Ltd T/A Salisbury Family Care (Salisbury Family Care).

[2] Salisbury Family Care sought that the application be dismissed on the basis that Ms Maynard failed to attend any proceedings requested by the Commission and failed to respond to directions issued on 7 April 2015.

[3] The application was listed for conciliation on three separate occasions, following advice from the applicant that she was unable to participate due to representation issues and on the last occasion, ill health. Ms Maynard was advised by the Commission, via a voicemail message, that in the absence of a medical certificate, the matter would be referred to a Member of the Commission for hearing.

[4] The application was referred to me on 26 March 2015 and listed for telephone directions on 2 April 2015. Ms Maynard received advice of this conference and was provided with a reminder for it. Notwithstanding this, she did not participate in this conference. Dr Symon of Salisbury Family Care participated in the conference. At the conference I confirmed that there were a number of potential jurisdictional issues associated with the application. I confirmed that the matter would be listed for a further telephone conference to consider the jurisdictional issues on 1 May 2015. A notice of listing was provided to the parties with directions dated 7 April 2015.

[5] These directions required Ms Maynard to provide written advice of her position with respect to whether an extension of time was necessitated and, if so, why her circumstances should be considered exceptional. This information was to be provided to the Commission and Dr Symon by close of business on 15 April 2015. Ms Maynard was further advised that if she did not comply with this direction, Salisbury Family Care was at liberty to lodge an application pursuant to s.399A of the FW Act based on her failure to participate in conciliation proceedings, the directions conference and to comply with those directions.

[6] On 23 April 2014, and following Ms Maynard’s non compliance with the directions, Salisbury Family Care lodged at application to dismiss the matter under s.399A.

[7] Section 399A states:

“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] A notice of cancellation for the jurisdictional conference on 1 May 2015 was issued with further directions. These directions advised as follows:

“[2] My directions of 7 April 2015 confirmed that the conference on 1 May 2015 was entirely dependent on the provision to me, and the exchanging of information between the parties consistent with the directions I issued. The Fair Work Commission has not received any further advice or material from Ms Maynard with respect to her application.

...

[5] Ms Maynard is DIRECTED to provide to the Commission, a statutory declaration, supported by documented material which confirms her inability or incapacity to participate in any of the conferences arranged relative to her application, or to comply with the directions issued on 7 April 2015. That declaration is to be provided to the Fair Work Commission by close of business 8 May 2015. ....

....

[8] Absent the provision of information by Ms Maynard consistent with this direction, I will dismiss her application pursuant to s.399A on, or shortly after 11 May 2015.”

[9] On the information before me, I am satisfied that Ms Maynard did not participate in any of the proceedings before the Commission listed on 10 March, 16 March, 20 March and 2 April 2015. I am satisfied that she did not comply with the directions issued relative to the conduct of the matter. Ms Maynard has not complied with my directions in relation to the s.399A application. Accordingly, I am satisfied that it is appropriate that her s.394 application should be dismissed and an Order (PR567430) will be issued to this effect.

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