Tayla Weightman v J & L Investments (NT) Pty Ltd T/A Squires Tavern & Sinsations

[2016] FWC 7791

[2016] FWC 7791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tayla Weightman
v
J & L Investments (NT) Pty Ltd T/A Squires Tavern & Sinsations
(U2016/7120)

COMMISSIONER BISSETT MELBOURNE, 7 NOVEMBER 2016

Application for relief from unfair dismissal – s.399A application to dismiss.

[1] On 23 May 2016, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms. Tayla Weightman (the Applicant). The Applicant’s employment had been terminated by J&L Investments (NT) Pty Ltd trading as Squires Tavern & Sinsations (the Respondent) on 3 May 2016.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on in support of her application by the close of business, 14 September 2016. The Applicant failed to comply with this direction.

[4] On 30 September 2016 the Respondent filed an application for the matter to be dismissed under s.399A of the Act, on the basis that the Applicant had failed to comply with a direction or order of the FWC relating to the application.

[5] On 5 October 2016 my Associate sent a letter to the parties with directions for the Applicant to provide reasons by 13 October 2016 why her application for an unfair dismissal remedy should not be dismissed. She was also advised that she could discontinue her application if she wished. The Applicant once again did not file any material with the Commission or respond in any way to the correspondence sent.

[6] 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.

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.

[7] Taking into account the provisions of s.399A and specifically s.399A(2), I am satisfied that the Respondent’s application filed on 30 September 2016 is an application to have the matter dismissed because of the Applicant’s failure to meet the provisions of ss.399A(1)(b).

[8] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[9] After considering all the material, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

COMMISSIONER

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