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Fair Work Act 2009
s.394—Unfair dismissal
Bessie Bryce
v
Italia Stone Group Pty Ltd
(U2020/14249)
DEPUTY PRESIDENT BINET PERTH, 31 DECEMBER 2020
Application for an unfair dismissal remedy.
[1] On 29 October 2020, Ms Bessie Bryce (Ms Bryce) filed an application (Application)
pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work
Commission (Commission) alleging she was unfairly dismissed by Italia Stone Group Pty
Ltd (Italia Stone). The Application indicated that Ms Bryce was represented by the firm
Employee Dismissal Claims.
[2] On 13 November 2020, Italia Stone filed a Form F3 - Employer response to unfair
dismissal application, asserting that Ms Bryce is not eligible to seek a remedy for unfair
dismissal under the FW Act because Ms Bryce’s duration of employment did not meet the
minimum employment period (First Jurisdictional Objection) and that Ms Bryce was not
dismissed (Second Jurisdictional Objection).
[3] The matter was listed for conciliation on 18 November 2020 but the dispute between
the parties was not resolved.
[4] The application was then allocated to my Chambers for determination.
[5] On 26 November 2020, the parties were issued with directions which required Ms
Bryce to file and serve on Italia Stone by 4pm on 10 December 2020 submissions and
evidence in relation to the First Jurisdictional Objection (Directions). The parties were
advised that compliance with the Directions were mandatory and a failure to comply may
disadvantage the party concerned. A copy of the Directions was forwarded to Ms Bryce’s
representatives.
[6] Neither Ms Bryce nor Employee Dismissal Claims filed any materials in accordance
with the Directions.
[7] On 14 December 2020 Chambers sent an email to the parties and Employee Dismissal
Claims warning that if Ms Bryce did not file any materials Italia Stone may seek to have the
Application dismissed pursuant to section 399A of the FW Act.
[2020] FWC 7074
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 7074
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[8] On 15 December 2020, Italia Stone filed with Chambers and served on Ms Bryce and
Employee Dismissal Claims an application for the matter to be dismissed pursuant to section
399A of the FW Act. Italia Stone submitted that the Application should be dismissed pursuant
to section 399A on the grounds that Ms Bryce unreasonably failed to comply with a direction
of the Commission when she failed to file her materials in accordance with the Directions
(Dismissal Application).
[9] On 16 December 2020 Ms Bryce sent an email to Chambers stating that:
“I have received an email saying I haven’t send [SIC] a form in when I have and now
my ex employer has dismissed me from my claim”
[10] On 16 December 2020, Ms Bryce and Employee Dismissal Claims were invited to file
materials, submissions and evidence as to why the Application should not be dismissed by
4pm on 18 December 2020.
[11] On 17 December 2020 Ms Bryce called the FWC Helpline and told the staff member
that she had signed and returned all necessary documentation to Employee Dismissal Claims.
[12] My Chambers contacted Ms Bryce the same day and explained the materials which
she was required to file and the dates by which the materials were due. Ms Bryce informed
my Associate that she would contact Employee Dismissal Claims and ensure that the
materials were provided.
[13] No materials were filed in accordance with the Directions and no submissions or
evidence were filed in relation to the Dismissal Application by 18 December or by the date of
this Decision.
[14] Section 399A of the FW 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 other 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).
[2020] FWC 7074
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(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.”
[15] Ms Bryce failed to file the materials she was directed to file by the dates specified in
the Directions, or at all. Ms Bryce failed to seek an extension to file her materials. As at the
date of this decision Ms Bryce has still not filed any materials in support of her Application or
in opposition to the Dismissal Application. I am satisfied that Ms Bryce has unreasonably
failed to comply with directions of the FWC relating to this Application.
[16] On application of Italia Stone and in the exercise of my discretion under section 399A
of the FW Act I have decided to dismiss the Application. An order to this effect [PR725870]
will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR725869
THE SEAL OF THE FAIT SEAL OF LIA WORK COMMISSION
