Blaire Emilee Hay v Aurora Energy Pty Ltd T/A Aurora Energy
[2023] FWC 370
•16 FEBRUARY 2023
| [2023] FWC 370 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Blaire Emilee Hay
v
Aurora Energy Pty Ltd T/A Aurora Energy
(U2023/304)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 16 FEBRUARY 2023 |
Application to deal with contraventions involving dismissal - application dismissed.
Ms Blaire Emilee Hay (applicant) has made an application under s 394 of the Fair Work Act 2009 (Cth) (Act) seeking a remedy for an alleged unfair dismissal by the respondent, Aurora Energy Pty Ltd T/A Aurora Energy.
For the reasons that follow, the application is dismissed for an unreasonable failure to attend a hearing.
Context
The applicant attempted to file her application for an unfair dismissal remedy on 10 January 2023. However, there were issues with the documents and the Commission received the application on 11 January 2023, being one day after the 21-day statutory timeframe had lapsed.[1]
The Commission granted the applicant a waiver of the application fee on 12 January 2023.
On 19 January 2023, the Commission emailed the parties to advise that the application was filed out of time and further steps would be required in the Commission to resolve the issue.
The application was listed for hearing at 2:00pm (AEDT) on 9 February 2023. The hearing was to proceed by way of Microsoft Teams. A notice of listing was sent to the applicant and to the respondent on 24 January 2023. The email addresses used to serve the notice of listing upon the parties reflects the email addresses provided by the applicant in the Form F2 application.
Directions dated 24 January 2023 were attached with the notice of listing. Amongst other things, the directions required the applicant to complete and file in the Commission an outline of submissions addressing the considerations relevant to the grant of an extension of time, a statement of evidence and a document list. These documents are specifically designed by the Commission to simplify the extension of time process for parties who may not have legal expertise. The directions directed all materials be filed by email to my Chambers. To date, the applicant has not complied with the directions.
On 2 February 2023, the applicant telephoned my Chambers. She questioned the Commission on her prospects of success because she did not consider herself to be an employee of the respondent. Rather, the applicant indicated that she was employed by a labour hire company on an assignment to the respondent. The applicant was advised that she should consider her position and advise the Commission accordingly.
In a further telephone call with my Chambers on 6 February 2023, the applicant confirmed her intention to press the application. The applicant was advised that she had failed to file any materials in accordance with the 24 January 2023 directions. The applicant was subsequently sent an email which attached the documents referred to at [7] above and provided a revised deadline of close of business on 6 February 2023 for compliance.
The applicant did not file any material in compliance with the revised deadline. On 7 February 2023, my Chambers sent a follow up email to the parties advising that the hearing would proceed on the material before the Commission.
On 9 February 2023, the Commission attempted to convene the hearing. Despite numerous attempts to telephone the applicant on the mobile number and the landline provided in the Form F2 application, the applicant failed to attend the hearing. It was identified that the mobile number listed by the applicant on the Form F2 contained one different digit from the mobile number used by the applicant to telephone the Commission on 2 February 2023. Accordingly, the Commission made further attempts to telephone the applicant on the mobile number identified in the Commission’s call log. The Commission’s records demonstrate that over 10 attempts were made to telephone the applicant on 9 February 2023.
On 10 February 2023, the Commission sent an email to the parties setting out the procedural background. The email identified that an unreasonable failure to comply with directions or attend a hearing provides a basis for the Commission to dismiss the unfair dismissal application pursuant to s 587 of the Act. The email also set out the following directions:
(a) By 4:00pm Monday, 13 February 2023, the applicant must respond to this email advising whether she intends to continue or discontinue her application.
(b)If the applicant advises the Commission that she intends to continue the application, by 4:00pm on Wednesday 15 February 2023, the applicant is to provide any materials explaining why the Commission should not dismiss the application for unreasonably failing to comply with directions or unreasonably failing to attend a hearing.
The applicant has not responded to these directions or to any communication from the Commission since 6 February 2023. It is also noted that at no point has the Commission received any communication from the respondent in this matter.
Consideration
Section 587 of the Act sets out when the Commission may dismiss an application. It provides:
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
…
(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The Commission is generally not limited in the ways in which it may dismiss an application under s 587(1).
A basis to dismiss an application pursuant to s 587 of the Act may arise where there has been a failure to comply with a direction, attend a hearing, comply with the rules, or take steps to “prosecute” an application in the sense that there is a delay attributable to a failure on the part of an applicant.[2]
Where the whole of the circumstances lead to a conclusion that there has been an inexcusable or unreasonable delay in the application, this may justify the exercise of the discretion to dismiss an application. Exercising the discretion may involve consideration as to the blame attributable to the applicant, prejudice to and complaint of the respondent, and involves a balancing of the Commission’s overarching considerations and the objectives of the Act.[3]
The hearing date in respect of the application was communicated to the applicant on 24 January 2023. I am satisfied that the applicant was properly notified of the hearing, and that the Commission made reasonable attempts to assist the applicant to attend the hearing, as detailed above at [6]-[11].
The applicant was provided with an opportunity to explain her non-attendance at the hearing by way of the directions issued on 10 February 2023. The applicant did not respond to the Commission’s correspondence or comply with the directions. The applicant has not advised the Commission of any change in her contact details such that there is a reasonable basis to assume the applicant has not received the Commission’s correspondence. The anomaly identified by the Commission with respect to the mobile number the applicant listed in the applicant’s Form F2 application was adequately resolved by taking the steps set out at [11] above to telephone the applicant at or about the time the 9 February 2023 hearing was to commence.
I am satisfied that the applicant has not provided any explanation for her non-attendance at the hearing and the failure to attend is therefore unreasonable.
I consider the following matters weigh in favour of the exercise of my discretion to dismiss the application.
First, the Commission is required to perform its functions in a manner that is “quick.”[4] This is particularly important in applications for an extension of time which precedes, and delays, any determination of the substantive application. The application was filed over a month ago and no substantial progress has been made with respect to a preliminary issue. The delay is attributable to the applicant’s non-attendance at the hearing on 9 February 2023. I am satisfied that this delay has prevented the Commission from quickly performing its functions as required by the Act.
Second, the applicant was granted a waiver of the application fee and has not, on the Commission’s records, retained a representative in any capacity. It therefore follows that the time and cost incurred by the applicant in making this application has been minimal.
In the circumstances, I consider it appropriate to exercise my discretion to dismiss the application in accordance with s 587 of the Act. I do so on the basis that the applicant unreasonably failed to attend a hearing on 9 February 2023.
Order and disposition
Having regard to the above matters and the conclusions reached, the application is dismissed.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) s 394(2)
[2] See, Stewart v Enable Western Australia[2022] FWC 2238 at [7]-[12] citing Mcleod v Kulgera Trading Company Pty Ltd[2014] FWC 2112 and Tomas v Symbion Health[2011] FWA 5458; Collins v Jones & Daughters Pty Ltd [2022] FWC 1129; Briggs v The Trustee For Sundose Trust[2022] FWC 1428; see also, Allen v Sir Alfred McAlpine [1968] 2 QB 229 at 244; Stollznow v Calvert [1980] 2 NSWLR 749; Greenwood v Irving [2018] ACTSC 310 at [38]-[39].
[3] Fair Work Act 2009 (Cth) ss 577-578 as well as the objectives of the Act and Parts of the Act; Bosworth v Coles Supermarket Beechboro T/A Coles Supermarket Beechboro[2022] FWCFB 153
[4] Fair Work Act 2009 (Cth) s 577(b)
Printed by authority of the Commonwealth Government Printer
<PR750613>
0
0
0