Tracey-Ann Day v J.J. Richards & Sons Pty Ltd
[2024] FWC 870
•5 APRIL 2024
| [2024] FWC 870 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tracey-Ann Day
v
J.J. Richards & Sons Pty Ltd
(U2024/115)
| DEPUTY PRESIDENT LAKE | BRISBANE, 5 APRIL 2024 |
Application for an unfair dismissal remedy – failure to comply – s.399A – application dismissed.
Ms Tracy-Ann Day (the Applicant) was employed by J.J. Richards & Sons Pty Ltd (the Respondent). The Applicant commenced employment on 21 March 2022 and resigned on 20 December 2023. On 3 January 2024, the Applicant made an application to the Fair Work Commission (the Commission) seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
A staff conciliation was listed for 6 February 2024 which the Applicant did not elect to attend. The matter was then listed before Commissioner Riordan on 21 February 2024 for member assisted conciliation. The Applicant elected to go to hearing. The matter was then allocated to my Chambers for determination on 29 February 2024.
The matter was listed for Hearing on 18 April 2024 and Directions were issued for the filing of material on 4 March 2024. The Applicant was required to file material in support of the application by no later than 15 March 2024. The Applicant did not file any submissions.
On 21 March 2024, the Respondent made an application to dismiss under s.399A of the Act on the basis that the Applicant did not comply with Directions.
My Chambers sent an email to the Applicant and her representative providing the Applicant until 28 March 2024 to provide her submissions and reasons for non-compliance. My Chambers attempted to contact the Applicant on 2 April 2024 regarding her non-compliance with no response.
The Applicant was sent an email from my Chambers on 2 April 2024 regarding her non-compliance. A follow up email was sent on 3 April 2024 that the Application would be dismissed on 5 April 2024 if no response was received.
The Applicant has not responded or filed any material with the Commission to this date.
Section 399A of the Act states:
“399A Dismissing application
(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.”
The Applicant has continually failed to follow directions issued by my Chambers. I have decided to grant the Respondent’s s.399A application and dismiss the application on the basis that the Applicant failed to comply with a direction or order of the Commission pursuant to s.399A of the Act.
DEPUTY PRESIDENT
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