Antoinette House v Munjuwa Health Housing and Community Aboriginal Corporation T/A Munjuwa Queanbeyan Aboriginal Corporation

[2019] FWC 1748

[2019] FWC 1748

The attached document replaces the document previously issued with the above code on 19 March 2019.

Minor edits neglected, changes made in paragraphs 4 and 10.

Associate to Deputy President Kovacic

Dated: 19 March 2019

[2019] FWC 1748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Antoinette House
v
Munjuwa Health Housing and Community Aboriginal Corporation T/A Munjuwa Queanbeyan Aboriginal Corporation
(U2018/8592)

DEPUTY PRESIDENT KOVACIC CANBERRA, 19 MARCH 2019

Application for an unfair dismissal remedy – application under s.399A to dismiss the application as a result of the Applicant’s unreasonable failure to comply with Directions and to attend a telephone non-compliance hearing – unfair dismissal application dismissed.

[1] On 22 August 2018 Ms Antoinette House (the Applicant) lodged an application under section 394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed by Munjawa Health Housing and Community Aboriginal Corporation T/A Munjawa Queanbeyan Aboriginal Corporation (the Respondent) on 10 August 2018.

[2] Conciliation failed to resolve the matter and as a result the matter was listed for a telephone mention and/or directions hearing on 27 November 2018. Directions were issued later that day requiring inter alia the Applicant to “file with the Commission and serve on the Respondent an outline of submissions and any evidentiary material on which it intends to rely by close of business on Tuesday, 18 December 2018.” Ms House’s application was also listed for hearing on 4-6 February 2019.

[3] In other developments, on 17 December 2018 the Fair Work Commission (the Commission) received a Form F54 – Notice of representative ceasing to act from Ms House’s representative.

[4] No submissions or evidentiary material were filed by Ms House in accordance with the abovementioned Directions. Accordingly on 20 December 2018 my chambers contacted Ms House to inquire as to when she anticipated filing her outline of submissions. Ms House responded that she was not aware of the need to do so as her representative had told her he would no longer be representing her. Ms House was informed that this was not the case and that she send a request to the Commission seeking an extension of time to file her submissions.

[5] In the absence of any such request having been received from Ms House, my chambers contacted Ms House again on 9 January 2019 and asked if she intended to file submissions or seek an extension of time to do so. Ms House indicated that her niece was supposed to have sent a request for an extension of time and that she would have her do so that day. No such request was subsequently received by the Commission.

[6] Against that background, on 10 January 2019 the Commission listed the matter for a telephone non-compliance hearing the following day (i.e. 11 January 2019). Ms House did not attend the telephone hearing nor did she contact the Commission to explain her failure to attend. Several attempts to contact Ms House on the morning of the hearing were unsuccessful. At the non-compliance hearing the Respondent made an application under s.399A of the Act that Ms House’s application be dismissed as a result of Ms House unreasonably failing to comply with a direction of the Commission in relation to her unfair dismissal application.

[7] By way of background, s.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.

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.”

[8] The Commission subsequently unsuccessfully sought to contact Ms House by telephone on 29 January and 1 February 2019. On both occasions voicemail messages were left asking Ms House to contact the Commission urgently. Ms House did not contact the Commission as requested. Also on 1 February 2019, the previously mentioned hearing dates were vacated.

[9] On 21 February 2019 I wrote to Ms House in the following terms:

“I refer to the non-compliance hearing held in relation to your unfair dismissal application on 11 January 2019. I note that you did not attend this hearing. At the non-compliance hearing the Respondent made an application under section 399A of the Fair Work Act 2009 (FW Act).

By way of background, section 399A of the FW Act provides as follows:

…

At the non-compliance hearing on 11 January 2019, the Respondent applied to have your application dismissed due to your failure to comply with the directions, issued by the Fair Work Commission (the Commission) on 27 November 2018.

As such, you are directed to file with the Commission, and serve on the Respondent, submissions providing reasons as to why the Commission should not dismiss your application, evidence or other documentary material you have to support your reasons. For example, if you are or have been unwell, the Commission requires a medical certificate. This material is required by no later than close of business on Thursday, 28 February 2019.

If you file material by the due date the Commission will consider your submissions and may deal with the application on the papers.

If you no longer wish to pursue your application for unfair dismissal and do not intend to address the directions above, please file a completed Form F50 - Notice of Discontinuance (see attachment).

Please be advised that if you do not file the material by close of business on Thursday, 28 February 2019, your application for relief from unfair dismissal will be dismissed.” (Emphasis as per original)

[10] Ms House did not respond to the above correspondence nor has she contacted the Commission to discuss the matter.

[11] It is clear from the above that Ms House has failed to comply with the Directions issued by the Commission on 27 November 2018 and 21 February 2019 and did not attend the telephone non-compliance hearing on 11 January 2019. In short, Ms House has failed to prosecute her unfair dismissal application. A Respondent is entitled to some certainty that claims made against them will be processed in a reasonable, efficient and expeditious manner. In order that this may occur, parties are required to comply with directions for the conduct of matters, which are aimed at facilitating a fair, efficient and expeditious hearing of an application.

[12] Taking into account the statutory scheme and the circumstances of this case, I am satisfied that the Respondent’s application under s.399A of the Act should be granted as a result of Ms House’s unreasonable failure to comply with the Directions issued by the Commission on 27 November 2018 and 21 February 2019 and to attend the telephone non-compliance hearing on 11 January 2019. Accordingly, Ms House’s unfair dismissal application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

S. Kelly for the Respondent.

Telephone hearing details:

Canberra

2019

January 11.

Printed by authority of the Commonwealth Government Printer

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