Ashleigh Pattison v Sevens WA (F&B) Pty Ltd

[2024] FWC 652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ashleigh Pattison
v

Sevens WA (F&B) Pty Ltd

(U2023/12430)

DEPUTY PRESIDENT BINET

PERTH, 13 MARCH 2024

Application for an unfair dismissal remedy - Application by the Respondent pursuant to s 399A of the Fair Work Act – Application dismissed.

On 12 December 2023, Ms Ashleigh Pattison (Ms Pattison) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed Sevens WA (F&B) Pty Ltd (Sevens WA).

On 23 January 2024, Sevens WA filed a Form F3 - Employer response to unfair dismissal application raising the jurisdictional objection that the Respondent is a Small Business employer and the employer complied with the Small Business Fair Dismissal Code and that Ms Pattison resigned and was not dismissed (Jurisdictional Objections).

The Application was allocated to my Chambers for determination.

A conciliatory conference to explore the resolution of the matter and/or determine the further programming of the matter was listed on 28 February 2024 (Conference), however the conference did not proceed due to a non-attendance of Ms Pattison.

On 28 February 2024, Chambers wrote to Ms Pattison advising her that as she failed to attend the Conference Sevens WA may lodge an application pursuant to section 399A of the FW Act for the Application to be dismissed due to her non-attendance.

Ms Pattison failed to respond to Chambers email.

On 29 February 2021, Sevens WA made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms Pattison failed to attend the Conference (Dismissal Application).

Ms Pattison was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm on Tuesday 5 March 2024. Chambers advised Ms Pattison that if she did not file submissions and evidence by 4pm Tuesday 5 March 2024, the Application would be dismissed pursuant to section 399A of the FW Act.

No submissions or evidence were filed in relation to the Dismissal Application by Ms Pattison by 4pm Tuesday 5 March 204, or since.

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.”

Ms Pattison failed to attend the conference on 28 February 2024. As at the date of this decision, Ms Pattison has still not filed any materials in response to the Dismissal Application. On the Application of Sevens WA and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

An Order to this effect will be issued with this decision.[1]

DEPUTY PRESIDENT

[1] PR772316.

Printed by authority of the Commonwealth Government Printer

Ashleigh Pattison brought an application against Sevens WA (F&B) Pty Ltd for an unfair dismissal remedy under the Fair Work Act 2009 (FW Act). The application was dismissed by the Fair Work Commission (FWC) on 13 March 2024. Sevens WA raised a jurisdictional objection stating that they were a small business employer who complied with the Small Business Fair Dismissal Code and that Pattison had resigned rather than being dismissed. The application was allocated to Deputy President Binet for determination. Pattison did not attend a conciliatory conference, leading Sevens WA to apply for the dismissal of the application under section 399A of the FW Act. Pattison did not respond to the notice of the application and did not file submissions or evidence in response to the application by the due date, resulting in the dismissal of her application.

The primary legal issue in this case was whether Pattison's failure to attend the conciliatory conference and her subsequent non-response to the application for dismissal constituted unreasonable conduct warranting the dismissal of her application under section 399A of the FW Act. Section 399A of the FW Act allows the FWC to dismiss an application if the applicant has unreasonably failed to attend a conference or hearing, or failed to comply with a direction or order of the FWC. The Deputy President considered Pattison's non-attendance at the conference and her failure to file submissions or evidence in response to the application for dismissal, finding that her conduct was unreasonable and that the application should be dismissed. The dismissal of the application was in the exercise of the Deputy President's discretion under section 399A of the FW Act.

Pattison's application was dismissed by the Fair Work Commission on the grounds that her failure to attend the conciliatory conference and her subsequent non-response to the application for dismissal constituted unreasonable conduct under section 399A of the FW Act. The Deputy President found that Pattison's failure to attend the conference and her failure to respond to the application for dismissal warranted the dismissal of her application. An order to this effect was issued with the decision.

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