Susan Schutz v Sodexo Remote Sites

[2014] FWC 8258

[2014] FWC 8258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Schutz
v
Sodexo Remote Sites
(U2014/8025)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 19 NOVEMBER 2014

Application for relief from unfair dismissal - 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 24 June 2014 Ms Schutz 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 Sodexo Remote Sites Australia Pty Ltd (Sodexo).

[2] Sodexo objected to the application on the basis that it asserted that the termination of Ms Schutz’ employment was a case of genuine redundancy. Ms Schutz’s application was joined with four other applications, made at around this same time, against Sodexo. Each of these matters involved the same genuine redundancy issue. The applications were collectively listed for hearing in Adelaide over three days commencing on 28 October 2014.

[3] The applications were referred to Drake SDP for conciliation and I was advised that agreement had, or was likely to be concluded with respect to three of the five applications. There were a number of issues associated with compliance with the directions I issued for this hearing. These issues resulted in the matters being listed for directions hearings on a number of occasions in October 2014. As a consequence of these issues the hearing of all five matters was changed so as to commence on 29 October 2014.

[4] At the commencement of the proceedings on 29 October 2014 Mr Ats, of counsel, representing the applicants collectively, advised that he proposed to cease representing Ms Schutz and had, despite his best efforts, been unable to communicate with her relative to the matter and associated settlement proposals. The hearing of the applications commencing on 28 October 2014 was deferred until February 2015 as a result of Mr Ats’ inability to make contact with Ms Schutz.

[5] Prior to the adjournment of the 29 October 2014 proceedings, Mr Harrington, of counsel, representing Sodexo, foreshadowed that Sodexo would apply to have Ms Schutz’s s.394 application dismissed, pursuant to s.399A of the FW Act.

[6] On 30 October 2014 Mr Ats provided formal advice that he was no longer representing Ms Schutz. Additionally, Sodexo lodged an application pursuant to s.399A in which it sought to have Ms Schutz’s unfair dismissal application dismissed on the grounds that Ms Schutz had not complied with the directions variously issued by the Fair Work Commission from 8 October 2014 to 23 October 2014 and had not attended the hearing of the matter on 29 October 2014.

[7] On 31 October 2014 I issued directions which required Ms Schutz to file any submissions or supporting material relative to the Sodexo s.399A application by close of business 14 November 2014. These directions advised that unless Ms Schutz complied with this requirement, her unfair dismissal application would be dismissed shortly after 14 November 2014. They advised that if material was received from Ms Schutz, it would be provided to Sodexo.

[8] On 3 November 2014 my Associate received documentation from a Mr Belt, whom she understood was Ms Schutz’s partner. I am advised that this documentation relates, in part, to the settlement discussions between the parties. My Associate forwarded this material to the Sodexo representative who confirmed, on 6 November 2014, that this material related to the without prejudice settlement terms and requested that they not be provided to me. Sodexo confirmed that, in the absence of Ms Schutz’s discontinuance of the application, it maintained its position that the application should be dismissed pursuant to s.399A.

[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] On the information before me, I am satisfied that Ms Schutz did not attend the hearing on 29 October 2014. I am satisfied that she did not comply with the directions issued relative to the conduct of the matter. Ms Schutz 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 (PR557973) will be issued to this effect.

SENIOR DEPUTY PRESIDENT

Appearances:

M Ats counsel for the Applicant.

N Harrington counsel for the Respondent.

Hearing details:

2014.

Adelaide:

October 29.

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<Price code A, PR557972>