Curtis v NED Kelly's Pizza [2016] FWC 3504 (31 May 2016) [2016] FWC 3504 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Shenae Curtis v Ned Kelly’s Pizza (U2016/4632) DEPUTY PRESIDENT GOOLEY MELBOURNE, 31 MAY 2016 Application for relief from unfair dismissal. [1] On 17 February 2016, Mr Shenae Curtis made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Curtis’ employment had been terminated by Ned Kelly’s Pizza on 31 January 2016. [2] The matter was the subject of conciliation on 4 April 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing. [3] Ms Curtis was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 16 May 2016. [4] Ms Curtis did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Kovacic on 20 May 2016. [5] Ms Curtis did not attend the non compliance hearing. Ned Kelly’s Pizza made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Curtis had failed to comply with the direction of the Fair Work Commission. Deputy President Kovacic waived compliance with the Fair Work Commission Rules 2013 and accepted Ned Kelly’s Pizza’s oral application. [6] On 20 May 2016, Ms Curtis was sent correspondence informing her of Ned Kelly’s Pizza’s section 399A application. Ms Curtis was directed to file submissions and other documentary material in respect of Ned Kelly’s Pizza’s application by close of business, on 27 May 2016. Ms Curtis was advised that if she failed to comply with this direction, her application would be dismissed. [7] Ms Curtis did not file any material with the Commission. [8] Section 399A of the Act provides as follows: 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. .... (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] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. [10] As Ms Curtis did not file any material in opposition to the application to dismiss, I will determine the application on the papers. [11] As Ms Curtis has provided no explanation for her failure to comply with directions, I find that her failure was unreasonable. [12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Curtis has failed to respond to the many attempts by the Commission to contact her. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Curtis’ application. An order giving effect to this decision will be issued today. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR580997>