Sheila Rowe v Bluebird Horsham T/A Oxanda

[2017] FWC 4983

[2017] FWC 4983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sheila Rowe

v

Bluebird Horsham T/A Oxanda

(U2017/8088)

Deputy President Masson MELBOURNE, 26 SEPTEMBER 2017

Application for an unfair dismissal remedy

1. On 26 July 2017, Ms Sheila Rowe (Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). The Applicant alleged that her employment had been terminated unfairly by Bluebird Horsham T/A Oxanda (Respondent) in June 2017, with the dismissal taking effect on 29 June 2017.

1. The Respondent raised an objection to the Commission hearing and determining the matter on the basis that the Applicant was not dismissed and that the Applicant’s application was lodged outside of the prescribed 21 day time limit.

1. The matter was not subject to conciliation as the Respondent elected not to participate.

1. Consequently, Directions were issued and the matter was listed for a jurisdictional hearing on 8 September 2017.

1. On 25 August 2017, the Applicant emailed the Commission and filed submissions relating to the objections raised by the Respondent. The Applicant requested that an extension of time be granted to file her unfair dismissal application.

1. On 1 September 2017, the Respondent emailed the Commission responding to the Applicant’s submissions. In their submissions, the Respondent asserted that the Applicant was not dismissed and objected to the Applicant’s application for an extension of time to file her application.

1. On 8 September 2017, the matter proceeded to jurisdictional hearing. Ms Laura Gaffey, legal representative, appeared on behalf of the Respondent. The Applicant made no appearance. The Applicant was contacted by telephone by a Commission staff member. The Applicant informed the Commission staff member that she would not be attending the hearing on that day and gave no indication if she would appear at the Commission at any time in the future. 

1. After the jurisdictional hearing was adjourned, a Commission staff member attempted to contact the Applicant again by telephone. The Applicant did not answer the call. A message was left for the Applicant but she did not return the telephone call. The Applicant was subsequently sent an email requesting that she notify the Commission whether she intended on discontinuing her application or if she wished to continue with her application.  The Applicant was given until close of business on 13 September 2017 to either discontinue her application or provide a written explanation for her non-attendance at the jurisdictional hearing and reasons why the Commission should not dismiss her application. The Applicant did not respond to this correspondence.

1. On 11 September 2017, a Commission staff member telephoned the Applicant. The Applicant answered this telephone call. The Commission staff member advised the Applicant that she had been sent an email on 8 September 2017. The Commission staff member explained to the Applicant the process of how to discontinue her application if that was the course she wished to take. The Applicant did not advise that she wanted to discontinue her application. The Commission staff member explained that her application could be dismissed if she did not respond to the email by 13 September 2017. The Applicant advised that she would look at the email.

1. The Applicant failed to file any material in response to the email by 13 September 2017.

1. On 18 September 2017, the Respondent made an application to the Commission for it to exercise its discretion under s 399A(1) of the Act to dismiss the application on the basis of the Applicant’s failure to attend the Commission. The Applicant was emailed a copy of the Respondent’s application and was directed to provide a response by 22 September 2017.

1. 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.”

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. As the Applicant did not file any material in opposition to the application to dismiss her application for unfair dismissal remedy by 22 September 2017, I will determine the application on the papers.

1. After considering all of the material, the Applicant’s application for remedy from unfair dismissal is dismissed. An Order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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