Commission dismisses unfair dismissal claim after applicant failed to appear
The Commission has dismissed a Ranger’s unfair dismissal application for want of prosecution after the applicant failed to attend a conference and various hearings.
The applicant was employed by the respondent as a Ranger. After the applicant made an unfair dismissal application, she failed to attend a conciliation conference, a directions hearing, a second show cause hearing, and failed to respond several times throughout the process.
At the first show cause hearing, the respondent contended the applicant had not taken any steps to progress her claim since 27 October 2021 and had failed to prosecute it with due diligence. The applicant submitted that they had been advised by a lawyer not to respond to the respondent’s communications, was confused by recent communications, was unsure what do and would seek legal advice to navigate the process. The Commission at that stage declined to dismiss the application.
The applicant claimed she had been unfairly dismissed because she had not been afforded due process and sought compensation. The respondent contended employment was terminated due to conduct and performance concerns and because the applicant failed to appropriately advise of her non-attendance. The respondent contended it had conducted its deliberations and engagement in a fair manner.
At the second show cause hearing, the respondent contended the application should be dismissed as the applicant had failed to comply with directions. The respondent contended that the non-compliance was aggravated as the Commissioner had indicated that the applicant was being allowed to pursue her claim by the slimmest of margins following repeated failures to prosecute it over an extended period, and that parties would need to seek any necessary extensions in advance of deadlines expiring.
The applicant did not attend the second show cause hearing.
The Commission found that the applicant had been duly served with notice of the proceedings and the Commission could proceed in her absence. The Commission found that the applicant had not contacted the Commission since advising that she wished to progress the matter and had not responded to the Commissioner’s Associate or attended the second show cause hearing.
The Commission noted the relatively long delay without explanation, no evidence of hardship to the applicant if the application was dismissed, and there being nothing to suggest the respondent’s conduct in any way contributed to the applicant’s failure to prosecute application. The Commission noted the onus rests with the party initiating proceedings to prosecute them diligently and to progress their application. The Commission found the applicant had not met the onus and had not pursued the matter appropriately.
The Commission found that the applicant had not prosecuted her application at the Commission and dismissed the application.
The decision can be read here.