Toula Krokos v Estia Health

[2021] FWC 3292

[2021] FWC 3292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Toula Krokos
v
Estia Health
(U2021/4134)

COMMISSIONER LEE MELBOURNE, 8 JUNE 2021

Application for an unfair dismissal remedy – application dismissed.

[1] On 13 May 2021, Ms Toula Krokos (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was dismissed from her employment with Estia Health (the Respondent) on 20 April 2021. The application was made outside of the statutory time period provided in the Act.

[2] On 17 May 2021, I set directions to allow the Applicant to file submissions and evidence in relation to the question of whether to extend the time for filing of the application by no later than 5:00 pm, Monday, 24 May 2021. The matter was also listed for Conference/Hearing at 2:00 pm on Monday, 31 May 2021.

[3] The Applicant did not comply with the directions, nor did she attend the Conference/Hearing. My chambers contacted the Applicant numerous times via email and telephone leading up to, and on the day of the Conference/Hearing. The Applicant did not respond to any of the Commission’s email correspondence or phone calls.

[4] The Respondent attended the Conference/Hearing and made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with directions of the Commission and failed to attend a conference/hearing held by the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[5] On 31 May 2021, the Applicant was sent correspondence informing her of the s.399A application. The Applicant was also directed to file submissions and other documentary material in respect of the s.399A application by no later than close of business on Friday, 4 June 2021. The Applicant was advised that if she failed to comply with this direction, her application may be dismissed.

[6] The Applicant did not file any material, or otherwise contact the Commission. My chambers attempted to contact the Applicant via telephone on 4 June 2021, however, the Applicant once again did not respond.

[7] 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.”

[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 pursuant to s.399A of the Act, I will determine the application on the papers.

[9] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has not shown a willingness to prosecute her case. The Applicant failed to attend a hearing of the Commission, failed to comply with directions of the Commission and has not provided an explanation for her failure to comply with directions. I am satisfied that the Applicant has unreasonably failed to comply with the directions and attend a hearing held by the Commission. In these circumstances, I have determined to exercise my discretion under s.399A(1)(a) and (b) of the Act and dismiss the Applicant’s application.

[10] The Applicant’s application for remedy from unfair dismissal is dismissed. An order will be issued concurrently with this decision. 1

COMMISSIONER

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