Yvonne Koolmatrie v Marthakal Homeland and Resource Centre Aboriginal Corporation T/A Marthakal Homelands Resource Centre

[2016] FWC 1655

[2016] FWC 1655

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yvonne Koolmatrie
v
Marthakal Homeland and Resource Centre Aboriginal Corporation T/A Marthakal Homelands Resource Centre
(U2014/14670)

COMMISSIONER ROBERTS SYDNEY, 29 MARCH 2016

Application for relief from unfair dismissal.

[1] On 22 October 2014 Ms Koolmatrie filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in relation to the alleged unfair termination of her employment by Marthakal Homeland and Resource Centre Aboriginal Corporation T/A Marthakal Homelands Resource Centre (the Centre).

[2] Following unsuccessful conciliation by a Fair Work Commission Conciliator on 20 November 2014, directions were issued by the Commission on 24 December 2014 for the filing of written submissions, witness statements and any supporting documents. The Applicant failed to file any material and the matter was later allocated to the then Vice President Lawler for arbitration.

[3] The matter was set down for mention via telephone on 6 February but the Applicant failed to attend. Here I note that the parties both resided on Elcho Island in the Northern Territory and there were great difficulties in contacting the Applicant. The telephone mention finally took place on 20 February and the matter was scheduled for arbitration on 31 March and 1 April 2015. The Commission was advised by the Applicant that she was going to relocate to Lake Nash Station, in the far south of the Northern Territory. On the notice of listing sent to the parties on 6 March 2015, the Applicant was directed to check her emails regularly and keep in touch with the then Vice President’s chambers.

[4] On 18 March 2015, the then Vice President’s chambers wrote to the parties seeking logistical information about the hearing scheduled to commence on 31 March. The Applicant did not respond to the email and the chambers made numerous attempts but failed to contact her. The hearing scheduled for 31 March and 1 April 2015 was vacated.

[5] On 3 July 2015, Ms C Ellison, of the Chamber of Commerce Northern Territory, made an application on behalf of the Respondent for the Commission to dismiss Ms Koolmatrie’s application pursuant to s.399A of the Act, on the ground that the Applicant failed to comply with any directions of the Commission and failed to respond to numerous attempts made by the Commission to contact her.

[6] The Respondent’s application has now been referred to me for consideration, following the then Vice President’s extended leave and subsequent resignation.

[7] On 3 March 2016 an email was sent to the Applicant by my associate to her last known email address, seeking a response to the Respondent’s s.399A application. The Commission did not receive any response from the Applicant.

[8] Section 399A of the Act provides:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[9] Having considered the history of the matter, I grant the application of the Respondent. Ms Koolmatrie’s application for relief is dismissed pursuant to s.399A of the Act.

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