Alysha Morrow v Metro Trains Melbourne
[2023] FWC 131
•19 JANUARY 2023
| [2023] FWC 131 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Alysha Morrow
v
Metro Trains Melbourne
(U2022/11325)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 19 JANUARY 2023 |
Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.
On 28 November 2022, Ms Alysha Morrow made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Metro Trains Melbourne (the Respondent). In her Form F2 – Unfair Dismissal Application, Ms Morrow provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Ms Morrow received a response that it was “undeliverable”.
Following a telephone conciliation on 15 December 2022 at which the matters in dispute were not resolved, the application file was allocated to me. I caused Directions and a Notice of Listing for a telephone Mention to be held on 19 December 2022 to be sent to the parties on 15 December 2022. My Directions dated 15 December 2022 outlined the timeline for the filing and service of material ahead of an Arbitration Conference/Hearing. In particular, Ms Morrow was directed to file and serve her Outline of Argument, Statement(s) of Evidence and Document List, by no later than 3.00pm on Monday, 9 January 2023.
The Directions also outlined that any party that wished to be represented by a lawyer or paid agent was required to outline the reasons why permission to be represented should be granted (having regard to the grounds in s.596 of the Act), when filing and serving their submissions.
On 16 December 2022, Ms Morrow emailed my Chambers requesting another date for the Mention. Ms Morrow was seemingly under the misapprehension that an Arbitration was going to be conducted that day and advised that she wished to confer with her lawyer and have her lawyer attend. In response, Ms Morrow was advised by my Associate that the listing for 19 December 2022 was not for a substantive hearing but was largely administrative in nature.
Both parties subsequently attended the Mention on 19 December 2022. I discussed my Directions dated 15 December 2022 and the requirement for the parties to prepare, file and serve their material. I emphasised the importance of the timetable and outlined the possible implications if they failed to file and serve their material in compliance with it.
On 5 January 2023, Ms Morrow emailed my Chambers requesting an extension of time for the filing of her material, citing delay due to the busy holiday period and her not being able to secure a consultation with her lawyer. Ms Morrow sent a follow up email regarding her request on 9 January 2023. To date, the Commission has yet to have received an application from Ms Morrow for permission to be represented by a lawyer or a Form F53 and her email on 9 January 2023 was Ms Morrow’s last contact with my Chambers.
On 9 January 2023, I granted Ms Morrow an extension of time to file and serve her material until 3pm on Friday, 13 January 2023 but she failed to file any material by this deadline. As such, a Notice of Listing was sent to the parties on 16 January 2023 setting the application down for a Non-compliance telephone hearing at 9.30am on 17 January 2023. The Notice of Listing was preceded by an email to the parties, confirming the details of the Non-compliance hearing and requesting that that they provide their best telephone contact details by no later than 9.00am on 17 January 2023.
The Non-compliance hearing proceeded before me on 17 January 2023. Ms Morrow could not be contacted, despite two attempts to call her on her nominated mobile phone number. The Respondent was in attendance and made an oral application pursuant to s.399A of the Act for the matter to be dismissed due to Ms Morrow’s failure to comply with my Directions requiring her to file and serve material and her non-attendance at the Non-compliance hearing. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.
Immediately following the Non-compliance hearing, correspondence was sent to Ms Morrow’s email address advising her of the Respondent’s s.399A application. Ms Morrow was directed to file submissions by no later than 3.00pm on 19 January 2023 explaining why she had neither complied with the Directions to file material, nor attended the Non-compliance hearing. This correspondence outlined that if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission and Ms Morrow was cautioned that in the absence of a response, her unfair dismissal application would likely be dismissed without further notice.
As at 3:00pm on 19 January 2023, Ms Morrow had not filed any material with the Commission in response to the s.399A application. This failure to do so is in addition to Ms Morrow not ever having made application to be represented by a lawyer and her continued failure to file material for the Arbitration Conference/Hearing pursuant to my Directions.
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.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As Ms Morrow did not file any material in opposition to the Respondent’s s.399A application, I will determine the s.399A application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. I confirm the Commission has at all times used the phone number and email address provided by Ms Morrow in its attempts to contact her. Ms Morrow has not responded to such attempts since 9 January 2023. Ms Morrow has had the opportunity to engage with the Commission’s processes and prosecute her case. She has previously been granted an extension of time to file and serve her material for the Arbitration Conference/Hearing but has not taken advantage of this. Since filing her unfair dismissal application on 28 November 2022, Ms Morrow has failed to progress the prosecution of her case and has provided no explanation to the Commission for either her continued failure to comply with the Directions requiring her to file and serve material or her failure to attend the Non-compliance hearing on 17 January 2023.
In all the circumstances of this matter, I am satisfied that I should exercise my discretion under s.399A to dismiss Ms Morrow’s unfair dismissal application. I am satisfied that Ms Morrow unreasonably failed to attend the Non-compliance hearing on 17 January 2023. Ms Morrow was advised of the Non-compliance hearing in advance via the contact details she had provided to the Commission and made no response to the Commission’s attempts to contact her before it, at the time of it or after. Further, I consider Ms Morrow has unreasonably failed to comply with both my direction to respond to the s.399A application and my direction that she file and serve her material for the Arbitration Conference/Hearing by 3.00pm on 13 January 2023. The Commission has not been made aware of any countervailing circumstances impacting on Ms Morrow’s capacity to respond to the Commission’s attempts to contact her since 9 January 2023. Ms Morrow’s three separate unreasonable failures weigh in favour of the exercise of the discretionary power in s.399A.
My determination to exercise my discretion to dismiss Ms Morrow’s unfair dismissal application pursuant to s.399A brings it to an end. An Order to this effect will be issued with this Decision.
DEPUTY PRESIDENT
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