Angel Love v Woolworths Group Limited

[2022] FWC 2199

[2022] FWC 2199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Angel Love
v

Woolworths Group Limited

(U2022/4773)

DEPUTY PRESIDENT LAKE BRISBANE, 18 AUGUST 2022

Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.

1. Ms Angel Love (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Woolworths Group Limited (the Respondent). Ms Kate Staude of Woolworths Group Limited has subsequently made an application for the matter to be dismissed pursuant to ss.399A(1)(a)–(b) of the Act.

Legislation

1. Section 399A of the FW Act provides:

“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 other 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.”

Procedural background

1. On 16 June 2022, Vice President Catanzariti’s Chambers allocated this matter to me.

1. On 8 August 2022, I issued the following Directions. A conference was listed for 10.00am on 17 August 2022 and a hearing on the merits of the dismissal was listed for 10.00am on 22 September 2022.

1. On the morning of the conference which was scheduled for a 10.00an commencement, the Applicant emailed my Chambers at 9.23am, stating that she would not be in attendance.

“Hello,

I have just noticed this email after searching my emails after Kate from Woolworths msgd [sic] me this morning. I am not available at 10am today sorry [sic]

Angel”

1. At 9.37am, my Chambers emailed the Applicant with a copy of the Notice of Listing and requested that she be in attendance.

“Dear Ms Love,

The Deputy President has directed that the conference will proceed as listed.

We draw your attention to the note in the Directions. You must comply with the notice of listing and the directions provided.

Your attendance is required and failure to attend may result in the Commission considering dismissal of your application.”

1. At 10.05am, my Chambers attempted to call the Applicant. A voice message was left with the Applicant informing her that the call was regarding the conference and that she would be called again to be added to the conference.

1. At 10.16am, the Applicant was called a second time and the Applicant did not answer. The conference was then adjourned at 10.19am.

1. At 4.03pm, the Respondent filed a Form F1 with the Commission. At 4.14pm, Chambers responded to this application, copying in the Applicant to the proceedings.

“Dear Ms Staude,

Chambers acknowledges receipt of the Form F1 Application.

Ms Love, the Deputy President is minded to consider the application to dismiss your application for failing to attend the conference and for failing to comply with directions as per the Fair Work Act 2009 (Cth) ss 399A(1)(a)–(b).

If you have any response, please provide it to Chambers by 12pm on Thursday, 18 August.”
[emphasis not added]

1. The Applicant did not respond to the correspondence nor has made any attempt to contact my Chambers.

The Respondent’s submissions

1. The Respondent in their Form F1 highlighted that the Applicant failed to comply with the Directions of the Commission and failed to attend the conference.

1. The Respondent sought that the matter be dismissed pursuant to ss.399A(1)(a)–(b) of the Act.

Consideration

1. The Applicant failed to engage in a timely manner with the Commission regarding the date set for conference. She informed my Chambers 37 minutes before the conference was to start and she failed to provide a valid reason for her non-attendance.

1. I received no communication from the Applicant by 12.00pm on 18 August as to her response to the application, why she failed to attend the conference, or follow the Directions.

1. In spite of Chambers attempting to communicate with the Applicant, she did not engage.

1. The failure to attend the conference, nor provide reasons why she could not, has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A of the Act.

1. The process undertaken has been in accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in her application being dismissed.

1. I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed for failure to attend the conference and follow a Direction from the Commission. Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

[1] [2021] FWCFB 875 [57].

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