Tiana Malatesta v Parade Holdings Pty Ltd T/A Parade Hotel

[2017] FWC 5074

[2017] FWC 5074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tiana Malatesta
v
Parade Holdings Pty Ltd T/A Parade Hotel
(U2017/5025)

DEPUTY PRESIDENT BULL PERTH, 9 OCTOBER 2017

Application for an unfair dismissal remedy - s.399A – application dismissed

[1] On 11 May 2017, Ms Tiana Malatesta (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been unfairly dismissed by Parade Holdings Pty Ltd (the employer).

Background

[2] The matter was listed for telephone conciliation on 14 July 2017 however on that date the applicant was unable to be contacted. A voicemail was left via the applicant’s nominated phone number and an email was sent to the applicant requesting that the applicant contact the Commission regarding her absence at the conciliation conference. The Commission did not receive a response from the applicant and accordingly on 20 July 2017 the matter was referred for formal proceedings.

[3] On 1 August 2017 the matter was listed for a directions teleconference scheduled to take place on 14 August 2017.

[4] The Commission contacted to applicant via phone on 10 August 2017 to confirm the contact number for the directions teleconference scheduled for 14 August 2017. The applicant confirmed the number the Commission was using was the correct number to reach her for the 14 August 2017 directions teleconference. The applicant stated she had not received the email advising her of the listing, however she confirmed the email address used by the Commission was the correct email address.

[5] The teleconference of 14 August 2017 was attended by the respondent and its representative. The applicant did not attend the teleconference and did not notify the Commission that she would not be attending.

[6] The Commission left a voicemail for the applicant and sent an email requesting she contact the Commission as soon as possible regarding her non-attendance at the directions teleconference.
[7] In a further email dated 14 August 2017, the Commission advised the applicant that failure to respond to the Commission’s correspondence may result in her application being dismissed.

[8] The Commission made several further attempts to contact the applicant via email and telephone however all attempts were unsuccessful. The applicant did not reply to the voicemails left or to the email correspondence sent from the Commission.

[9] On 31 August 2017, the respondent lodged an application pursuant to s.399A of the Act that the matter be dismissed on the basis that the applicant had failed to attend two conferences conducted by the Commission and failed to respond to Commission correspondence. A copy of that application was served on the applicant.

[10] To date the applicant has not responded to the Commission correspondence despite being directed to do so, nor has she otherwise contacted the Commission regarding this application.

Legislation

[11] 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.”

Decision

[12] I am satisfied that the applicant has unreasonably failed to attend the directions conference listed in this matter and failed to attend the conciliation conference. I am satisfied the applicant has unreasonably failed respond to the Commission’s correspondence as directed. No explanation has been provided by the applicant to the Commission for her non-attendance, nor for her lack of response to Commission correspondence. In accordance with s.399A of the Act, the application for an unfair dismissal remedy is dismissed. An order [PR596475] to this effect will be issued today.

DEPUTY PRESIDENT

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<Price code A, PR596473>