Tracey Wilkinson v Uniting Agewell Limited

[2021] FWC 6559

[2021] FWC 6559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracey Wilkinson
v
Uniting Agewell Limited
(U2021/8861)

COMMISSIONER BISSETT MELBOURNE, 9 DECEMBER 2021

Application for an unfair dismissal remedy – s.399A application to dismiss.

[1] On 5 October 2021, Ms Tracey Wilkinson (the Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant alleged that she had been unfairly dismissed by Uniting Agewell Limited (the Respondent) on 24 September 2021.

[2] The matter was listed for conciliation before a staff conciliator on 3 November 2021 but the matter did not settle. The matter was subsequently referred to me for programming for hearing.

[3] On 4 November 2021 I issued Directions to the parties for the filing of evidence and witness statements, a hearing date and for a Case Management Conference on 8 November 2021. On the morning of the Case Management Conference the Applicant requested the conference be adjourned due to a medical condition. The conference was vacated and I determined not to re-list it. An email was sent to the parties reminding them of the filing and hearing dates in the Directions.

[4] The Applicant’s submissions and evidentiary material were due at 4.00 pm on Friday 19 November 2021. No submissions or evidence were received from Ms Wilkinson.

[5] On 22 November 2021 my chambers emailed the Applicant informing her that no submissions had been received from her and that her application could not progress if she did not comply with the Directions issued. The Applicant’s filing date was extended until 4.00 pm on Wednesday 24 November 2021. The correspondence also warned that a failure to comply may result in her application being listed for a Non-Compliance Hearing.

[6] As no materials were received by this date, the matter was listed for Non-Compliance Hearing at 9.30 am on Friday 26 November 2021.

[7] On the morning of the Non-Compliance Hearing attempts to call the Applicant were unsuccessful and there was no option to leave a voicemail.

[8] During the hearing the Respondent made a verbal application under s. 399A of the FW Act to dismiss the Applicant’s unfair dismissal application. I waived compliance with the Fair Work Commission Rules 2013 in accordance with Rule 6 and accepted the application over the telephone. Following the hearing the Applicant was contacted by email informing her of the application and directing her to file any reasons as to why her unfair dismissal application should not be dismissed, by 4.00 pm Tuesday 7 December 2021. The correspondence warned that if the Commission did not hear from the Applicant, her unfair dismissal application would likely be dismissed without further correspondence .

[9] To date, the Applicant has not filed any material with the Commission.

[10] Section 399A of the FW 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.

....

(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.

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

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to make a request for an extension to file material and has not provided an explanation to the Commission for her failure to comply with the directions of the Commission.

[13] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this will be issued with this decision.

COMMISSIONER

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