Amy Swain v CLNI Pty Ltd T/A the Albert Hotel

[2014] FWC 4538

[2014] FWC 4538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amy Swain
v
CLNI Pty Ltd T/A The Albert Hotel
(U2013/14765)

DEPUTY PRESIDENT BOOTH SYDNEY, 8 JULY 2014

Termination of employment - application for unfair dismissal remedy - application to dismiss pursuant to s.399A of the Fair Work Act 2009.

[1] Ms Amy Swain was employed as a chef by CLNI Pty Ltd T/A The Albert Hotel (the Respondent) in Tamworth from 15 April 2013 until the employment relationship ended on 27 October 2013. Ms Swain contends that she was unfairly dismissed and on 12 November 2013 she lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Nicklaus Weir, Licensee of the Respondent, who spoke to her on the evening of 27 October 2013, claims that following an exchange between them about her time keeping she resigned.

[2] The matter was the subject of a telephone conciliation by a conciliator but it was not resolved. The file was allocated to me and I listed the matter by telephone on 6 February 2014 for directions in preparation for a hearing. Mr Weir was available however Ms Swain could not be contacted. I listed it again on 27 February and on that occasion both parties were present. Ms Swain was self-represented and, by permission of the Commission pursuant to s.596 of the Act, Mr Weir was represented by Ms Heather Sayner, Industrial Relations Consultant. Notwithstanding that it had been listed for directions I asked the parties if they would like to attempt another conciliation and they agreed.

[3] Progress was made and on 28 February 2014 I was advised by that the matter had settled and that Mr Weir had effected the settlement. My Associate endeavoured to confirm this understanding with Ms Swain however she did not reply to his telephone messages or an email and I listed it for further telephone conference for 13 March 2014 to hear directly from the parties concerning the progress in the matter.

[4] During the conference on 13 March 2014 Ms Swain confirmed that the matter was settled and that she had received the settlement monies and an Employment Separation Certificate. She agreed to complete a Notice of Discontinuance and one was sent to her from my Chambers. However she did not complete the Notice of Discontinuance and instead sent an email to my Associate indicating that she would not do so unless the Employment Separation Certificate noted that the employment relationship had ended by dismissal rather than resignation which was stated on the document completed by Mr Weir.

[5] I listed the matter again by telephone conference on 25 March 2014 in the hope that the parties could confirm their settlement and agree on the content of the Employment Separation Certificate. Ms Swain could not be contacted. Ms Swain and Ms Sayner exchanged emails between 29 March 2014 and 15 April 2014 however agreement was not reached on the content of the Employment Separation Certificate.

[6] On 22 April 2014 I wrote to the parties indicating my intention to list the matter for hearing. I invited the Respondent to advise me of any threshold jurisdictional or interlocutory applications. None were advised and the matter was listed for hearing on 29 July 2014 in Tamworth and directions were issued on 7 May 2014 as follows:

“1. Further to the listing of the above matter to be heard in Tamworth on 29 July 2014, the Fair Work Commission (the Commission) hereby directs that, on or before close of business Wednesday 4 June 2014, the Applicant shall file and serve upon the other party and the Commission:

(a) a copy of an outline of the Applicant’s argument in support of the application;

(b) the names of any witness which the party intends to call and a witness statement of the evidence they will give;

(c) a copy of any document upon which the party intends to rely on in respect of the application; and

(d) a list of any authorities upon which the party intends to rely.

2. The Commission further directs that, on or before close of business Wednesday 2 July 2014, the Respondent shall file and serve upon the other party and the Commission:

(a) a copy of any response to the Applicant’s material;

(b) the names of any witness which the party intends to call and a witness statement of the evidence they will give;

(c) a copy of any document upon which the party intends to rely on;

(d) a list of any authorities upon which the party intends to rely.

3. The Commission further directs that, on or before close of business Wednesday 9 July 2014, the Applicant shall file and serve upon the other party and the Commission a copy of any response to the Respondent’s material.”

[7] On 23 May 2014 Mr Robert Kellow lodged a Form F53 Notice of Representative Commencing to Act on behalf of the Respondent.

[8] Ms Swain did not comply with the directions and on 7 June 2014 Mr Kellow made an application pursuant to s.399A of the Act for Ms Swain’s application to be dismissed. This application was served on Ms Swain and I wrote to her on 11 June 2014 and directed that she provide submissions in response by 5pm on 17 June 2014. I asked her to indicate whether she sought a hearing of the matter and advised that if I did not receive a response from her I would make a decision on the application made pursuant to s.399A of the Act based on the written submissions, a process commonly referred to as being a decision made on the papers.

[9] This is my decision. It is based upon the application made by Mr Kellow on behalf of the Respondent and my conduct of the matter as outlined above.

[10] I must consider whether the circumstances of the conduct of this matter are such as to enliven my discretion pursuant to s.399A of the Act and if so, whether to exercise that discretion in favour of the application by the Respondent.

[11] Section 399A of the Act reads 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.

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.

[12] I am satisfied that pursuant to s.399A(2) of the Act an application has been made by the employer in this matter for the application to be dismissed.

[13] Ms Swain has unreasonably failed to attend a conference conducted by the Commission on two occasions. No reason for her non-attendance was advanced in relation to either occasion. I regard this as unreasonable. This enlivens my discretion pursuant to s.399A(1)(a) of the Act.

[14] Ms Swain has unreasonably failed to comply with a direction of the Commission relating to the application on two occasions. No reason for her failure to comply with directions has been given. I regard this as unreasonable. This enlivens my discretion pursuant to s.399A(1)(b) of the Act.

[15] It is arguable that Ms Swain has failed to discontinue the application after a settlement agreement has been concluded. She has received settlement monies and an Employment Separation Certificate as agreed in a conference before me. However, if the failure to agree on the content of the Employment Separation Certificate means that a settlement agreement had not been concluded and s.399A(1)(c) of the Act is not enlivened then I rely upon my findings in relation to s.399A(1)(a) and s.399A(1)(b) of the Act.

[16] In the circumstances I believe it is appropriate to exercise my discretion to dismiss the application.

[17] It would be unfair for the Respondent to be required to come before the Commission to respond to an unfair dismissal application in circumstances of non-compliance with directions in relation to submissions and evidence and where the details of the alleged unfair dismissal are presented in only in the most scanty manner in a Form F2 application.

[18] Furthermore, given Ms Swain’s conduct in this matter I have no confidence that she would even appear in the Commission and it would be unreasonable for the Commission to travel to Tamworth to hear the matter in circumstances where there is a distinct possibility of Ms Swain’s non-attendance.

[19] In all the circumstances I dismiss this application and vacate the date listed for the matter to be heard in Tamworth on 29 July 2014.

[20] An order reflecting this decision will issue concurrently.

DEPUTY PRESIDENT

Final written submissions:

7 June 2014

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