Suwanna Wan-In v Iris Group Management Pty Limited Summary

[2024] FWC 1342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Suwanna Wan-In
v

Iris Group Management Pty Limited

(U2024/193)

COMMISSIONER MCKINNON

SYDNEY, 22 MAY 2024

Application for an unfair dismissal remedy

Ms Suwanna Wan-In was employed on a casual basis by Iris Group Management Pty Limited trading as the Riverwood Hotel (Iris Group). Her employment commenced on 10 May 2023 and ended on 4 January 2024.

On 5 January 2024, Ms Wan-In applied in time for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Iris Group objected (late) to the application on the basis that Ms Wan-In was a “casual employee with ad-hoc shifts”.

On 25 March 2024, I issued directions for the conduct of the case. Neither party complied with the Directions as issued. A further direction was issued to Ms Wan-In on 17 April 2024 requiring her to file any materials in support of her application by close of business that day. Ms Wan-In did not comply with the direction.

Section 399A of the Act permits the Commission to dismiss an application in prescribed circumstances, one of which is that the applicant has unreasonably failed to comply with a direction or order of the Commission relating to the application. The power may only be exercised on application by the employer. Iris Group has applied for dismissal of the application under section 399A.

I find that Ms Wan-In has failed to comply with directions of the Commission to:
File and serve an outline of submissions, all witness statements and any other evidentiary material upon which she sought to rely by 16 April 2024,
File and serve any material in reply to the Respondent’s materials by 7 May 2024,
File and serve short submissions on the format of the hearing and any request for permission to appear, and
Attend Conciliation on 8 May 2024.

Further, Ms Wan-In did not enter an appearance at the hearing of the application today.

The failure of Ms Wan-In to file any material in reply to the Respondent’s materials by 7 May 2024 was plainly not unreasonable in circumstances where the Respondent had not filed any such materials. However, her failure to comply with each of the other directions issued in relation to the conduct of her case, in circumstances where no explanation has been provided to the Commission, was unreasonable. It meant the diversion of public resources to a case that appears to have been abandoned.

The application is dismissed under section 399A.

COMMISSIONER

Appearances:

No appearance for the Applicant.
R Hawkins for the Respondent.

Hearing details:

2024.
Sydney (by video):
May 22.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Suwanna Wan-In v Iris Group Management Pty Limited, the applicant, Ms Suwanna Wan-In, sought an unfair dismissal remedy against her former employer, Iris Group Management Pty Limited. Ms Wan-In had been employed as a casual worker at the Riverwood Hotel, which is operated by Iris Group, from May 2023 until January 2024. The dispute arose after Ms Wan-In applied for an unfair dismissal remedy under the Fair Work Act 2009, and Iris Group subsequently objected to the application. The matter was brought before the Fair Work Commission to determine whether the application should proceed and whether the dismissal was unfair.

The primary legal issue before the Commission was whether Ms Wan-In's application for an unfair dismissal remedy should be dismissed under section 399A of the Fair Work Act. This section permits the dismissal of an application if the applicant unreasonably fails to comply with a direction or order of the Commission. The Commission needed to determine whether Ms Wan-In's repeated failure to comply with the directions issued by the Commission was unreasonable, particularly in light of her failure to file any material in reply to the employer's submissions despite the employer not having filed any such material. The Commission also had to consider whether Ms Wan-In's non-compliance with other directions, including the failure to enter an appearance at the hearing, constituted an unreasonable failure to comply.

The Commission found that while Ms Wan-In's failure to file material in reply to the employer's submissions was not unreasonable given the employer had not filed any material, her failure to comply with other directions was indeed unreasonable. These included the failure to file an outline of submissions, all witness statements, and other evidentiary material by the specified dates, as well as her failure to attend conciliation and to enter an appearance at the hearing. The Commission noted that Ms Wan-In's non-compliance diverted public resources to a case that appeared to have been abandoned. Consequently, the Commission dismissed the application under section 399A of the Fair Work Act.

The Commission made no orders regarding the unfair dismissal claim as the application itself was dismissed. The decision highlights the importance of complying with the Commission's directions and the potential consequences of failing to do so.

Suwanna Wan-In v Iris Group Management Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established