Tayla Hardcastle v Roar Fitness 247 Pty Ltd T/A Roar Fitness 247

[2019] FWC 5750

[2019] FWC 5752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tayla Hardcastle
v
Roar Fitness 247 Pty Ltd T/A Roar Fitness 247
(U2019/6518)

DEPUTY PRESIDENT BINET PERTH, 30 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 13 June 2019, Ms Tayla Hardcastle (Hardcastle) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Roar Fitness 247 Pty Ltd T/A Roar Fitness 247 (Roar Fitness).

[2] Ms Hardcastle advised that her employment with Roar Fitness commenced on 5 December 2018 and that she was notified of her dismissal on 29 May 2019.

[3] On 25 June 2019, Roar Fitness filed a response to the Application confirming that Ms Hardcastle commenced employment with Roar Fitness on 5 December 2018 and was dismissed on 29 May 2019. Roar Fitness’ response raised a jurisdictional objection to the Application, namely that Ms Hardcastle’s employment did not meet the minimum employment period (Jurisdictional Objection).

[4] Section 382(a) of the FW Act states that a person is protected from unfair dismissal if at the time of dismissal that person has completed a period of employment with his or her employer of at least the minimum employment period. Section 383 defines the minimum employment period as:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[5] Attempts by Chambers to contact Ms Hardcastle to draw to her attention section 382 were unsuccessful.

[6] On 8 August 2019 the parties were issued with directions which required Ms Hardcastle to file and serve by 4pm on 15 August 2019 submissions and evidence in relation to the jurisdictional objection (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[7] On 16 August 2019, Chambers emailed the parties noting that Ms Hardcastle had not filed the materials as required. Ms Hardcastle was advised that her Application may be dismissed if she did not comply with the Directions.

[8] On 19 August 2019, Roar Fitness filed with Chambers and served on Ms Hardcastle an application for the matter to be dismissed pursuant to sections 399A of the FW Act. Roar Fitness submitted that the Application should be dismissed pursuant to section 399A on the grounds that Ms Hardcastle unreasonably failed to comply with a direction of the FWC when she failed to file his materials in accordance with the Directions (Dismissal Application).

[9] On the afternoon of 19 August 2019 Ms Hardcastle was again invited to file submissions and evidence or other documentary material supporting those reasons as to why the Application should not be dismissed by 4pm on Wednesday 21 August 2019.

[10] On 21 August 2019 Ms Hardcastle filed with Chambers a copy of her employment contract and noted that clause 3 provided for a 3-month probation period. She did not provide any explanation for her failure to comply with the Directions.

[11] Section 399A of the FW Act provides:

“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 other 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).

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.”

[12] On her own evidence, Ms Hardcastle has been employed for less than 6 months. Ms Hardcastle has not contested, and there is no evidence before me to suggest otherwise.

[13] Ms Hardcastle failed to file all the materials she was directed to file by the dates specified in the Directions. Ms Hardcastle failed to seek an extension to file her materials or provide a reason for failing to do so. The submissions of 21 August 2019 have failed to persuade me that the Commission has jurisdiction to determine the Application. I am satisfied that Ms Hardcastle has unreasonably failed to comply with directions of the FWC relating to this Application.

[14] On application of Roar Fitness and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR711445] will be issued with this decision.

DEPUTY PRESIDENT

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