Andrea Chandler v Weslin Co Pty Ltd T/A McDonald's Gisborne

[2018] FWC 7360

[2018] FWC 7360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrea Chandler
v
Weslin Co Pty Ltd T/A McDonald’s Gisborne
(U2018/7566)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 20 July 2018, Ms Andrea Chandler made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Chandler said her employment had been terminated by Weslin Co Pty Ltd T/A McDonald’s Gisborne (Weslin Co) on 29 July 2018.

[2] The matter was initially scheduled for conciliation on 17 August 2018. However, the matter was rescheduled twice to 20 August 2018 and 24 August 2018 due to Ms Chandler’s unavailability, and again to 13 September 2018 as a result of Weslin Co’s unavailability. Notices of Listing were sent to the parties on each occasion a date for the proposed conciliation was set.

[3] As it was, the conciliation scheduled for Thursday 13 September 2018 could not proceed due to Ms Chandler’s unavailability. Ms Chandler advised the Commission conciliator shortly after the time it was due to commence that she was not aware that the conciliation had been scheduled (despite the Notice of Listing having been sent to her nominated email address) and further, that her circumstances did not permit her to attend. Ms Chandler was advised by the Commission conciliator that a non-attendance letter would be sent out shortly and that she would be required to respond to it if she wished to proceed to a further conciliation.

[4] Later on Thursday 13 September 2018, correspondence was sent from the Commission to the parties stating that unless either of the parties advised that they wished for the matter to proceed to a further conciliation within the two working days, the matter would be referred for arbitration.

[5] On 17 September 2018, Ms Chandler sent the Commission two emails advising that she had recently found casual work, was currently involved in an intensive care situation and that this had precluded her from being able to participate in the scheduled conciliation on 13 September 2018.

[6] Nonetheless, the Commission emailed both parties on 20 September 2018 seeking their availability for the purposes of scheduling a further conciliation. In response to this, Weslin Co advised on 24 September 2018 that it did not wish to participate in a further conciliation and the matter was therefore referred for arbitration.

[7] On 1 October 2018, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 3-5 December 2018. Directions were also issued, which required Ms Chandler to file her material by no later than noon on 22 October 2018 and Weslin Co to file its reply material by no later than noon on 12 November 2018. This Notice of Listing was sent to both Ms Chandler’s nominated email address and her nominated postal address.

[8] On 21 October 2018, the Commission received an email from Ms Chandler. It was a reply to the Commission’s correspondence dated 20 September 2018 and contained details of her shift times at that time and her availability for the purposes of scheduling the conciliation conference.

[9] On 23 October 2018, the Commission attempted to telephone Ms Chandler in relation to her email sent on 21 October 2018 and her outstanding material, which was due on 22 October 2018. No contact was made and so a voicemail was left seeking her return call.

[10] On 24 October 2018, a further telephone call to Ms Chandler was attempted. Again, it was not successful and a voicemail message was left requesting a return call.

[11] On 25 October 2018, email correspondence was sent to Ms Chandler’s nominated email address warning that in the absence of her filing material or making a request for an extension to file material by 2:00pm that afternoon, her matter would be listed for a non-compliance hearing. A SMS was also sent to Ms Chandler’s nominated mobile phone number asking her to respond by 2:00pm.

[12] Later the same day, Ms Chandler emailed the Commission twice. She stated she was not available until 29 November 2018 and that she was not being non-compliant. She further advised that she risked the loss of her current casual job by using her phone or having personal time whilst on shift. Following this, Ms Chandler called the Commission and advised she had been working and only had internet access through her phone. Additionally, despite them having been sent to her nominated email and postal addresses, Ms Chandler advised that she was unaware of the directions requiring her to file material by 22 October 2018. The Commission nonetheless informed Ms Chandler that she could seek an extension request via email, to which Ms Chandler replied that she would be able to access a computer the next day. The Commission then sent Ms Chandler a SMS containing the appropriate email address for her to make the request.

[13] On 26 October 2018, Ms Chandler emailed the Commission to seek an extension for the filing of her material. During a follow-up telephone call to Ms Chandler on 29 October 2018, the Commission confirmed with her that she was seeking an extension of four weeks. With Ms Chandler’s consent, the email request was forwarded to Weslin Co on the same day.

[14] The Commission received an email in reply from Weslin Co on 30 October 2018. Weslin Co’s opposition to Ms Chandler’s request for an extension to file her material was outlined and it requested that the matter be dismissed pursuant to s.399A of the Act.

[15] On 9 and 13 November 2018, two attempts were made to telephone Ms Chandler in relation to her overdue material. Both attempts were unsuccessful and voicemails were left on each occasion requesting a return call.

[16] On 14 November 2018, Weslin Co made a formal application pursuant to s.399A of the Act that the matter be dismissed for reasons which included the multiple adjournments of the conciliation conference at Ms Chandler’s request, her failure to attend the conciliation without providing any notice or reasons, and her failure to comply with the direction of the Commission to file her material by 22 October 2018.

[17] On the same day, correspondence was sent to Ms Chandler, via email and express post to her nominated email and postal addresses, informing her of Weslin Co’s s.399A application. Ms Chandler was directed to file submissions and other documentary material in respect of the s.399A application by no later than close of business on 28 November 2018. The correspondence further stated that if the Commission did not receive a response, Ms Chandler’s application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Ms Chandler’s nominated postal address on 16 November 2018.

[18] By 30 November 2018, with no response having been received from Ms Chandler, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled for 3-5 December 2018.

[19] To date, Ms Chandler has not filed any material with the Commission.

[20] 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.”

[21] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[22] As Ms Chandler did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[23] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Since speaking with the Commission on 29 October 2018, Ms Chandler has failed to respond to the subsequent multiple attempts made by the Commission to contact her. While having eventually made an extension request, Ms Chandler has demonstrated a lack of willingness to prosecute her case. She has not followed up on the status of her request nor has she proceeded to file material in compliance with the Commission’s directions made over eight weeks ago on 1 October 2018. Ms Chandler has provided no explanation for her failure to comply with the Commission’s directions and nor has she responded to Weslin Co’s s.399A application as directed. The history of this matter and Ms Chandler’s approach to it is one of continuing non-compliance. In these circumstances, I am satisfied Ms Chandler has behaved unreasonably and am persuaded that I should exercise my discretion under s.399A of the Act to dismiss Ms Chandler’s application.

[24] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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