Suzy Louise Watson v Bupa Care Services Pty Ltd

[2014] FWC 1654

[2014] FWC 1654

FAIR WORK COMMISSION

DECISION

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

Suzy Louise Watson
v
Bupa Care Services Pty Ltd
(U2013/13746)

COMMISSIONER CAMBRIDGE SYDNEY, 10 MARCH 2014

Unfair dismissal - non compliance with Directions - failure to attend proceedings - s.399A - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 19 September 2013. The application was made by Suzy Louise Watson (the applicant) and the respondent employer is Bupa Care Services Pty Ltd(the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 5 August 2013. Consequently, the application was not made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was listed for conciliation to be conducted on 5 November 2013. However the conciliation was cancelled because the employer sought to have its jurisdictional objection regarding the late lodgement of the application dealt with before any conciliation of the matter.

[4] Consequently, Directions were issued by the Fair Work Commission (the Commission) and the matter was listed for Hearing of the Applicant’s Extension of Time and the Respondent’s Jurisdictional Objection (Jurisdiction Hearing) on 13 December 2013.

[5] The applicant did not comply with the Directions for filing of material prior to the Jurisdiction Hearing and sought an adjournment of the proceedings. The employer complied with the Directions and filed a witness statement and an outline of submissions.

[6] The Jurisdiction Hearing scheduled for 13 December was cancelled and the matter was listed for Further Directions on 8 January 2014.

[7] On 8 January, further Directions were made in preparation for a Jurisdiction Conference/Hearing which was listed for 20 March 2014. The applicant was directed to file and serve material by 14 February 2014. The applicant failed to comply with this Direction and no material has been filed by or on behalf of the applicant.

[8] Consequently, the matter was listed for a Non Compliance Hearing on 7 March 2014.

[9] The applicant did not attend the Non Compliance Hearing. The employer made an oral application, pursuant to s.399A of the Act, that the matter be dismissed because the applicant had failed to comply with the Directions of the Commission and that the applicant had failed to attend the Non Compliance Hearing.

[10] I waived any requirements arising from the Fair Work Commission Rules 2013 in respect to the oral application made during the Non Compliance Hearing and I accepted the employer’s oral application.

[11] I note that on 18 February 2014, the employer sent correspondence to the Commission which was copied to the applicant and which advised of the employer’s anticipated s.399A application.

[12] 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.

[13] The applicant has not filed or otherwise provided any material in opposition to the application to dismiss, and I have proceeded to determine the application on the material before me.

[14] After considering all of the material, I am satisfied that the conduct of the applicant has involved her unreasonably failing to attend the Non Compliance Hearing, and unreasonably failing to comply with the Directions of the Commission. Consequently, the provisions of subsections (1) (a) and (b) of s.399A of the Act have been met. Therefore, the application for remedy from unfair dismissal is dismissed pursuant to s.399A of the Act. An Order [PR548515] giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

There was no appearance by or on behalf of the applicant;

Mr C Cook appeared on behalf of the employer.

Hearing details:

2014.

Sydney:

March, 7.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR548514>