Amanda Thompson v Mercy Community Services Inc

[2011] FWA 8083

[2011] FWA 8083

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.372—General protections

Amanda Thompson
v
Mercy Community Services Inc
(C2011/5760)

COMMISSIONER WILLIAMS PERTH, 29 NOVEMBER 2011

Application to deal with other contravention disputes.

[1] This matter involves an application made by Amanda Thompson (the Applicant) under section 372 of the Fair Work Act 2009 (the Act). The Respondent is Mercy Community Services Inc.

[2] The Respondent indicated in its Form F8A Employers Response that it agreed to participate in a conference - see section 374(1)(b).

[3] The application was the subject of a conference on 20 October 2011 at 11:15am. The Respondent's representative and HR Manager participated at that time as did Mr Trainer the Applicant's representative. The Applicant however did not participate in the conference. Mr Trainer advised that he had had discussions with the Applicant about the conference and his understanding was that she would participate and was not able to explain her absence.

[4] With the employers agreement the matter was adjourned to establish the reason for the Applicant’s non-attendance.

[5] Mr Trainer subsequently advised that he had spoken with the Applicant and her explanation for not participating in the conference was that her sleeping patterns have been distorted and she did not wake in time for the conference.

[6] The Applicant, through Mr Trainer, requested consideration be given to relisting the matter to another date in the afternoon.

[7] Consequently, a second conference was listed for 21 November 2011 at 2:15pm in accord with the Applicant's preferred timing. The notice of listing for the second conference was sent to Mr Trainer and to the Applicant herself by email and by post on 27 October 2011.

[8] On 14 November 2011 Mr Trainer informed my chambers by email that he was no longer representing the Applicant.

[9] On 21 November 2011 at the previously notified time the second conference was convened and the Respondent's representative and HR Manager again participated.

[10] Having waited until 15 minutes after the notified time for the conference, there was no attendance by the Applicant.

[11] The Respondent was not aware of any reason why the Applicant had failed to participate in this second conference. The Respondent advised that the Applicant had not worked since September and had lodged a workers compensation claim but remained employed with the Respondent.

[12] The Respondent requested that this application be dismissed for want of prosecution.

[13] Following the conference it was brought to my attention that at 11:54am the Applicant had sent an email to my chambers regarding the conference listed for 2:15pm.

[14] The Applicant’s email asked if it would be possible to “have an extension on this hearing” because her representative Mr Trainer is no longer representing her. The Applicant explained her dissatisfaction with her representative and that she did not feel able to proceed without a representative.

[15] The email was not copied to the Respondent or the Respondent’s representative.

[16] Given the timing of these events no reply had been made by my chambers or myself to the Applicant’s email at the time the second conference was held.

[17] Both of the notices of listings that have been provided to the Applicant advising of conference times and dates include the following:

“Requests for adjournment to another date will only be considered where there are substantial grounds and the request is made in writing in a timely manner. Fair Work Australia may ask the other party whether they object to the requested adjournment. Fair Work Australia has discretion to approve or reject an adjournment request and will consider the interests of the other party and the limited availability of Fair Work Australia.”

[18] The Applicant had not been advised that her request for an adjournment had been agreed to. Nonetheless she chose not to participate in the second conference.

[19] The Applicant’s representative had ceased to act for the Applicant one week before the second conference was held and the Applicant's request for the second conference to be adjourned and listed on a later date was made less than 2 and a half hours prior to the second conference going ahead. It cannot be said that the application for an adjournment was made in a timely manner.

[20] The Respondent was not made aware of the request for an adjournment prior to the second conference proceeding.

[21] Whilst I appreciate the Applicant's apprehension at appearing without representation it is not uncommon in this jurisdiction for employees to represent themselves in such applications.

[22] In the circumstances because of the extremely short notice the Applicant gave, the likely inconvenience to the Respondent for a second time and the fact that this was a second conference listed because of the Applicant's failure to participate in the first conference, had I been aware of the Respondent’s email I would not have allowed the adjournment requested.

The legislation

[23] Section 577 obliges Fair Work Australia to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities, is open and transparent and promotes harmonious and cooperative workplace relations.

[24] Further section 578 relevantly requires that in performing its functions or exercising powers in relation to a matter Fair Work Australia must take into account the Objects of the Act.

[25] Section 3 Objects of the Act includes at 3(e) 'providing accessible and effective procedures to resolve grievances and disputes...;’.

[26] Section 587(3) empowers Fair Work Australia to dismiss an application on its own initiative or on application.

Decision

[27] In this case the Applicant has failed to participate in two conferences that have been listed to deal with the application she has made regarding the dispute.

[28] Both conferences were telephone conferences which allowed the Applicant easy access to the dispute settling conference procedure with a minimum of effort.

[29] The Respondent employer and their representative have on two occasions agreed to attend these conferences at their cost and inconvenience. There is no practical ability under the Act for the Respondent’s to recover the costs incurred because of the Applicant’s actions. It would not be fair to expect the Respondent to participate in a third conference.

[30] The Respondent had previously advised of its agreement to participate in a conference conducted by Fair Work Australia to deal with the dispute. Such agreement to participate in a conference is a precondition for Fair Work Australia to conduct a conference dealing with disputes notified under section 372 of the Act - see section 374.

[31] Effectively the Respondent’s have now withdrawn their agreement to participate in such a conference. The Respondent's position is entirely understandable in all the circumstances.

[32] In the circumstances then this application should properly be dismissed under section 587(3).

[33] The Applicant retains the right to pursue a general protections court application if she so chooses.

[34] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

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