Virginia Cummings v Blue Illusion Australia Pty Ltd T/A Blue Illusion

[2015] FWC 3190

[2015] FWC 3190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Virginia Cummings
v
Blue Illusion Australia Pty Ltd T/A Blue Illusion
(U2015/371)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 MAY 2015

Application for relief from unfair dismissal.

[1] Ms Virginia Cummings alleged that the termination of her employment by Blue Illusion was unfair.

[2] Ms Cummings was directed to file material in support of her application by 16 March 2015. Ms Cummings filed some handwritten notes in compliance with the directions and wrote a further email to the Fair Work Commission on 30 March 2015.

[3] On 20 April 2015, Blue Illusion filed its submissions and witness statement in opposition to Ms Cummings’ application.

[4] The matter was listed for hearing on 4 May 2015 at 10.00am.

[5] Ms Cummings did not attend the hearing and did not advise my chambers prior to the hearing of any reason for her non-attendance.

[6] At the hearing, Ms Catherine Wheatly, the Regional Manager for Blue Illusion, swore to the truth of her witness statement. 1

[7] At the hearing, I advised that unless Ms Cummings was able to provide a satisfactory explanation for her non-attendance, her application would be dismissed.

[8] I caused an email to be sent to Ms Cummings the same day advising her that she needed to inform my chambers by noon on 7 May 2015 of the reasons for her non-attendance at the hearing. She was advised that if she did not respond, her application would be dismissed.

[9] Ms Cummings did not reply to the email and has made no contact with my chambers.

[10] I am satisfied that Ms Cummings had notice of the hearing and was provided with an opportunity to present her case or provide an explanation for her non-attendance at the hearing.

[11] In L. Sayer v Melsteel Pty Ltd, 2 a Full Bench in similar circumstances such as this stated that:

“[16] [w]hen...... the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent’s case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent’s case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

[17] It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action.”

[12] In this matter, I am satisfied on the sworn evidence of Ms Wheatly that Blue Illusion have a defence of substance in this matter.

[13] I therefore conclude that the termination of Ms Cummings’ employment was not harsh, unjust or unreasonable and her application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant.

L. George for the Respondent.

Hearing details:

2015.

Melbourne:

4 May.

 1   Exhibit R1

 2   [2011] FWAFB 7498

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