Susan Daws v Sanrosa Pty Ltd T/A Globe Backpackers & City Oasis Resort

[2016] FWC 9116

[2016] FWC 9116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Susan Daws
v
Sanrosa Pty Ltd T/A Globe Backpackers & City Oasis Resort
(U2016/12468)

COMMISSIONER PLATT ADELAIDE, 19 DECEMBER 2016

Application for relief from unfair dismissal - failure to participate in proceedings – s.339A application – application dismissed.

[1] This decision deals with an application by Sanrosa Pty Ltd T/A Globe Backpackers & City Oasis Resort (Sanrosa), pursuant to s.399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application lodged by Ms Susan Daws on 13 October 2016.

[2] Ms Daws' application was listed for conciliation on 16 November 2016. This conciliation did not take place as Ms Daws did not attend and could not be contacted by telephone or email.

[3] The application was referred to me for determination, including the resolution of two jurisdictional objections, namely that the application was out of time and the minimum employment period had not been met.

[4] Ms Daws failed to attend a directions conference which was listed on 2 December 2016. Attempts by my Associate to contact Ms Daws by telephone and email were unsuccessful.

[5] Following the directions conference, formal directions for the filing of material and a notice of listing for the hearing of the matter were issued by the Commission. A copy of the directions and notice of listing were sent via express post and email to Ms Daws.

[6] The Directions required Ms Daws to file in the Commission and serve on the Respondent by 12 December 2016:

“ An outline of submissions in relation to the extension of time issue and the minimum employment period;

• A witness statement for any witness to be called; and



• A copy of any document upon which is relied upon.”

[7] The directions further stated:

“[5] Ms Daws did not attend the directions conference listed on 2 December 2016. Ms Daws is advised that if she fails to lodge a submission in accordance with these directions, her application may be dismissed without further notice.”

[8] No material was received from Ms Daws. Sanrosa subsequently filed an application pursuant to section 399A of the Act for the matter to be dismissed.

[9] 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.”

[10] Parties were advised by email that the section 399A application would be considered at the hearing which was listed on 19 December 2016.

[11] Ms Daws did not attend the hearing on 19 December 2016. Attempts by my Associate to contact Ms Daws by telephone and email were unsuccessful.

Findings

[12] The Commission’s communications were directed to Ms Daws using the contact details provided with her application. It is clear to me that the failure of Ms Daws to respond to any communication satisfies the requirements of section 399A (1)(a) and (b) of the Act.

[13] In my view, Ms Daws conduct was unreasonable. In short Ms Daws has failed to prosecute her application after it was lodged.

[14] Ms Daws’ application will be dismissed pursuant to s. 399A of the Act. An Order 1 to this effect will be issued.

COMMISSIONER

 1   PR588783.

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