Sommerville v McDonalds Australia [2015] FWC 8701 (17 December 2015)

[2015] FWC 8701

Fair Work Act 2009_

s.394 - Unfair dismissal

[1] On 30 September 2015, Ms Shania Sommerville made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Sommerville's employment had been terminated by McDonald's on 15 January 2015.

[2] As the application was filed out of time, directions were issued and the matter was listed for an extension of time conference/hearing.

[3] Ms Sommerville was directed to file an outline of argument and statement of evidence she wished to rely on by noon, on 20 November 2015.

[4] Ms Sommerville did not comply with this direction.

[5] On 25 November 2015, a Fair Work Commission staff member left a voicemail and sent a text message to Ms Sommerville, asking that she contact the Commission regarding her application.

[6] On 26 November 2015, a further voicemail was left for Ms Somerville to contact the Commission and an email was sent regarding her overdue submissions. Ms Somerville was advised if she no longer wanted to pursue her application, she should file a Notice of Discontinuance.

[7] On 27 November 2015, a further voicemail was left for Ms Sommerville asking that she urgently contact the Commission.

[8] Ms Sommerville did not respond to any contact from the Commission.

[9] On 27 November 2015, McDonald's filed an objection to the application and sought the dismissal of Ms Sommerville's application. McDonald's based their objection on grounds which include failure to comply with directions.

[10] On 1 December 2015, Ms Sommerville was sent correspondence informing her of McDonald's section 399A application. Ms Sommerville was directed to file submissions and other documentary material in respect of McDonald's application by close of business, on 11 December 2015. Ms Sommerville was advised that if she failed to comply with this direction, her application would be dismissed.

[11] Ms Sommerville did not file any material with the Commission.

[12] Section 399A of the Act provides as follows:

(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.

[13] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[14] As Ms Sommerville did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[15] After considering all the material, Ms Sommerville's application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

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