Amanda Quarmby v CLA Trading Pty Ltd T/A Europcar

[2019] FWC 7407

[2019] FWC 7407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Quarmby
v
CLA Trading Pty Ltd T/A Europcar
(U2018/12256)

COMMISSIONER RIORDAN SYDNEY, 28 OCTOBER 2019

s.399A dismissal of application for an unfair dismissal remedy.

[1] Ms Amanda Quarmby (the Applicant) lodged an unfair dismissal application on 27 November 2018 claiming that she was unfairly dismissed by CLA Trading Pty Ltd t/a Europcar (the Respondent) on 8 November 2018.

[2] The application was listed before me for conference and directions, at Wollongong Courthouse, on 25 January 2019. Both parties failed to attend the conference.

[3] My Associate telephoned the Applicant on 25 January 2019 and was informed by the Applicant that she did not attend the conference due to ill health.

[4] My Associate also telephoned the Respondent on 25 January 2019.

[5] Both parties were sent the following correspondence from my Chambers:

“I refer to the attached notice of listing issued to both parties on 14 January 2019.

I confirm that both parties failed to be in attendance at the Wollongong Court house today.

Although I have verbally spoken with you both on the telephone this morning, can you please confirm in writing the reasons as to your failure to attend within 7 days.”

[6] At 10.15am on 25 January 2019 an employee of the Respondent emailed my Chambers as follows:

“I wish to sincerely apologise for our non attendance at the Wollongong Court today to hear the matter U2018/12256 - Quarmby v CLA Trading Pty Ltd. We did not realize that we had to be in attendance.

As we are based in Victoria we respectfully request that we be able to participate by phone conference when the matter is rescheduled.”

[7] At 12.47pm on 29 January 2019 the Applicant sent the following email to my Chambers:

“Good Morning

Plz accept my sincere apologies at not being available on the 25 Jan.

I was an am currently still unwell.

Sincerely
Amanda Quarmby”

Communication with the Applicant 29 January to 14 February 2019

[8] Between 29 January 2019 and 14 February 2019, my Associate communicated with the Applicant on a number of occasions to enquire as to the Applicant’s health and her wish to pursue her application. The Applicant responded promptly to these communications.

4 February 2019

[9] At 8.43am on 4 February 2019 an email was sent from my Associate to the Applicant:

“I refer to your above mentioned unfair dismissal application.

I am further following up with you in relation to the relisting of the matter. Can you please confirm if you would still like for your application to proceed? Once an application is lodged, we are required to list the matter within a certain timeframe. I am hoping to list the matter for next week.”

[10] At 9.35am the same day, the Applicant replied as follows:

“Good Morning

Unfortunately I will be unable to proceed with the matter as I am entering treatment for my mental health and will be away for several months.

If the matter can’t be adjourned until I return I have no option other than to not go ahead with it.

Thank you for your time regarding this matter.

Sincerely”

[11] At 3.10pm on 4 February 2019, my Associate sent the following email:

“Dear Ms Quarmby,

Please be advised that for your unfair dismissal matter to be adjourned for a long period of time – we will require a medical certificate advising of a certain timeframe.

Once received from you – the matter can be listed after that period of time.

However, if you wish to discontinue your application all together, you are required to fill out the attached form, or confirm via return email that you no longer wish for your application to proceed.”

7 to 14 February 2019

[12] My Chambers sent a further email on 7 February 2019 to the Applicant, as follows:

“Dear Ms Quarmby,

I am following up on my below email.

It is really important I do receive a confirmation from you in relation to your application.

If you do not wish to pursue your unfair dismissal application, you are required to file a notice of discontinuance (attached for ease of reference).

You have seven days to respond to this correspondence. “

[13] At approximately 12.15pm on 14 February 2019, the Applicant telephoned my Chambers. The file note in the Commission’s case management system is as follows:

“t/c from (A).

(A) confirmed that she will send through a medical certificate next week from her treating Dr so as the file can be stood over for a period of time.

The Applicant does not wish to discontinue her application at this point in time.”

[14] A pertinent email from the Applicant was received in my Chambers at 7.51pm on 14 February 2019:

“Hi

As discussed today I will be attending a treatment facility due to address mental health issues.

I will be admitted next Thursday 21/02 and will have my doctor complete and send you a medical certificate so the hearing can be adjourned to a later date.

Thank you kindly for your understanding.

Warm Regards
Amanda quarmby”

Attempts to contact Applicant between 14 February 2019 and 19 September 2019

[15] Following the Applicant’s email of 14 February 2019, communications from the Applicant effectively ceased. File notes in the Commission’s case management system confirm that my Associate attempted to contact the Applicant as follows:

Date	Communication attempt	File note
25 February 2019	Email sent	Email to (A) following up on medical certificate that was to be received on 21/2/19
26 March 2019	Telephone call	Voicemail left for (A) re; require response to email sent on 25/2/19
27 March 2019	File note	Cmr has requested for the file to remain open until the end of April. And then contact (A) re; status of it.
20 May 2019	Email sent	Further email to (A) re status of application
19 September 2019	Telephone calls	3 x attempts to contact (A) on mobile. No option to leave voicemail. Further email will be sent

19 September 2019 emails

[16] At 9.50am on 19 September 2019, the following email was sent to the Applicant:

“Dear Ms Quarmby,

Re: U2018/12256 - Quarmby, Amanda Patricia v CLA Trading Pty Ltd T/A Europcar

I refer to the above mentioned matter.

You have failed to respond to a number of calls and previous emails sent to you in relation to your unfair dismissal application on numerous occasions.

You have failed to comply with any Directions given in relation to submitting medical certificates or providing updates on the matter.

This is formal notification that you have seven days to provide an explanation. If you fail to provide a satisfactory explanation, your unfair dismissal application may be dismissed without any further warning. The Fair Work Commission has not been able to make contact with you for months.

I have attached a notice of discontinuance for ease of reference, if you no longer wish to proceed with your application.”

[17] At 1.37pm on 19 September 2019, the Applicant responded by email, as follows:

“Good afternoon

I do still wish to go ahead with this case

I apologise for not being in contact earlier, since my dismissal I have suffered severe mental / emotional health issues

What are the next steps

Sincerely
Amanda Quarmby”

[18] At 3.06 pm on 19 September 2019, the following email was sent to the Applicant.

“Dear Ms Quarmby,

As requested many months ago, however, never received from yourself – to proceed with your application the Commissioner requires medical evidence for the cause in the delay.

I reconfirm, you have seven days to provide this documentation.”

Final email to the Applicant

[19] I understand and sympathise with the significant toll that mental illness can take on managing aspects of life. On 30 September the following email was sent to the Applicant:

“Dear Ms Quarmby,

Further to my below email correspondence, I confirm the Commissioner formally advises you have until 4pm on 4 October 2019 to provide the requested Doctors certificate.

If you fail to submit the requested documentation, your application will be determined accordingly.”

[20] The Applicant has not made contact with the Commission since her correspondence of 19 September 2019.

Section 399A

[21] Section 399A of the Fair Work Act, 2009 (the Act), states:

“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 another 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).

(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 587

[22] Section 587 of the Fair Work Act, 2009 (the Act), states:

“587 Dismissing Application

(1)  Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)  the application is not made in accordance with this Act; or

(b)  the application is frivolous or vexatious; or

(c)  the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2)  Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)  is frivolous or vexatious; or

(b)  has no reasonable prospects of success.

(3)  The FWC may dismiss an application:

(a)  on its own initiative; or

(b)  on application.”

[23] I have taken into account that the Respondent claims that the Applicant authorised the unlawful use by her father of the Respondent’s petrol card.

Conclusion

[24] The Applicant has been given numerous opportunities to provide a doctors certificate in relation to her ongoing health issues but has failed to provide any documentation.

[25] Based on the information which has been provided by the parties in relation to the unauthorised use of a company petrol card, I am of the view that the Applicant’s unfair dismissal application has no reasonable prospect of success.

[26] In accordance with section 587(1)(c) of the Act, the application is dismissed.

[27] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR713744>