Tracey-Ann Day v J.J. Richards & Sons Pty Ltd Summary

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Tracey-Ann Day versus J.J. Richards & Sons Pty Ltd, the applicant sought an unfair dismissal remedy under the Fair Work Act 2009. The applicant had been employed by the respondent from 21 March 2022 until she resigned on 20 December 2023. The matter was listed for a hearing on 18 April 2024, and directions had been issued for the filing of material on 4 March 2024, with the applicant required to file her submissions by 15 March 2024. Despite the directions, the applicant did not file any submissions. On 21 March 2024, the respondent applied to dismiss the application on the basis that the applicant failed to comply with the directions. The applicant was sent several emails by the deputy president’s chambers, requesting submissions and reasons for non-compliance, but the applicant did not respond to any of the communications.

The legal issue before the court was whether the applicant's failure to comply with the directions issued by the Commission was unreasonable and warranted the dismissal of her application under section 399A of the Fair Work Act. The court found that the applicant's continual failure to follow the directions issued by the deputy president's chambers was unreasonable and that the application should be dismissed. The court exercised its power under section 399A of the Act to dismiss the application and granted the respondent's application. The applicant's failure to comply with the directions was a sufficient ground for the dismissal of the application.

The court found that the applicant had failed to follow the directions issued by the deputy president’s chambers and did not provide any reasons for non-compliance. The court held that the applicant's failure to comply with the directions was unreasonable, and the application should be dismissed. The court granted the respondent's application to dismiss the application under section 399A of the Fair Work Act. The applicant's failure to comply with the directions was a sufficient ground for the dismissal of the application. The court dismissed the application on 5 April 2024.

No further orders were made by the court.

Tracey-Ann Day v J.J. Richards & Sons Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established