Vivienne Guy v Forest Hill Out of School Hours Care Inc T/A Forest Hill Out of School Hours Care

[2017] FWC 4117

[2017] FWC 4117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Vivienne Guy
v
Forest Hill Out of School Hours Care Inc T/A Forest Hill Out of School Hours Care
(U2017/4681)

COMMISSIONER CAMBRIDGE SYDNEY, 8 AUGUST 2017

Application for an unfair dismissal remedy.

[1] The Fair Work Commission (the Commission) issued Directions in this matter on 23 June 2017, which, inter alia, required that by 14 July 2017, the applicant, Vivienne Guy, was to file and serve documentary material upon which her unfair dismissal claim could be prosecuted. The applicant did not provide any material in compliance with this Direction.

[2] The Directions of 23 June 2017 included a notice of listing of the matter for Jurisdiction and Arbitration Conference/Hearing on 31 August and 1 September 2017.

[3] On 20 July 2017, the Commission sent an email to the applicant’s representative to advise that no material has been filed in compliance with the Directions, and such non-compliance may have an impact on the continuance of the proceedings pursuant to section 399(A)(1)(b) of the Fair Work Act 2009 (the Act). The correspondence also required an urgent response within 7 days of the date of the correspondence to provide reasons for the non-compliance.

[4] On 27 July 2017, the Commission receive an email reply from the applicant’s representative to indicate the applicant would be in a position to file her evidence within 7 days and requesting leave for the applicant to file her evidence and submissions by 3 August 2017. The Commission responded by email to advise that any alteration to the Directions issued on 23 June 2017 should be pursued by consent of the respondent.

[5] The respondent’s representative sent an email communication on 28 July 2017 to indicate their opposition to the applicant’s request for leave to file her evidence and submissions by 3 August 2017, and requesting the Commission exercise its powers under section 399A of the Act to dismiss the application on the basis of failure to comply with Directions of the Commission.

[6] In response to the respondent’s application, the Commission issued an email to advise it will proceed to deal with the s. 399A application, and any material in support of that application should be filed by 2 August 2017, and any material in response to that application should be filed by 4 August 2017.

[7] The applicant has not provided material in compliance with Directions, nor has she provided any explanation for such non-compliance or filed any material in response to the respondent’s application under s.399A. The absence of material upon which the claim for unfair dismissal remedy could be prosecuted, renders the application to be without reasonable prospects of success.

[8] Therefore, in the circumstances, pursuant to ss.399A and 587 of the Act, the application is dismissed because; the applicant has unreasonably failed to comply with Directions of the Commission; and, the application has no reasonable prospects of success; and, the application has failed for want of prosecution.

[9] An Order [PR595163] dismissing the matter will be issued concurrently with this Decision.

COMMISSIONER

Final written submissions: Respondent: 2 August 2017.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR595161>