Breanna Richards v Alliance Fuel Card Pty Ltd T/A Foodworks Maffra

[2019] FWC 7916

[2019] FWC 7916

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Breanna Richards
v
Alliance Fuel Card Pty Ltd T/A Foodworks Maffra
(U2019/9481)

COMMISSIONER BISSETT MELBOURNE, 28 NOVEMBER 2019

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.

[1] On 23 August 2019 Ms Breanna Richards 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 Richards said she was notified of her dismissal by Alliance Fuel Card Pty Ltd T/A Foodworks Maffra (Respondent) on 2 August 2019.

[2] A Notice of Listing was issued to the parties on 5 September 2019 scheduling a telephone conciliation on 26 September 2019.

[3] On 23 September 2019 the Commission left a voicemail message for the Applicant seeking to confirm her telephone number for the conciliation. A letter was also emailed to the Applicant the same day requesting confirmation.

[4] On 25 September 2019 the Commission sent a SMS text message to the parties reminding them of the conciliation scheduled for the following day.

[5] Despite several attempts to telephone the Applicant on 26 September 2019 the conciliation did not proceed due to the Applicant’s failure to attend.

[6] At approximately 1.27 pm on 26 September 2019 the Applicant telephoned the Commission and advised that she had missed the Commissions calls that morning. The Applicant was advised by a Commission Registry Officer to respond to any forthcoming emails from the Commission.

[7] On 27 September 2019 correspondence was emailed to the parties’ nominated email address advising them that a further conciliation would be conducted if a request was received within two working days. No request was received.

[8] As no response was received from the Applicant, the Commission attempted to telephone her on 2 October 2019 to discuss if she wished to proceed to a further conciliation. The Applicant did not answer the call and a voicemail message was left requesting that she call the Commission urgently. The Applicant did not return the Commission’s call.

[9] On 4 October 2019 the Commission sent an email to the parties to advise that the matter would be referred for hearing.

[10] On 7 October 2019 the Commission attempted to telephone the Applicant to discuss if she wished to proceed with her application. This was unsuccessful and a voicemail message was left requesting a return call. The Applicant failed to return the Commission’ call.

[11] Later that day the Commission issued directions to the parties and the matter was listed for Arbitration Conference/Hearing for 19 to 22 November 2019. The Applicant was directed to file her material by no later than noon on 21 October 2019. No submissions were received from the Applicant by the due date.

On 21 October 2019 the Commission telephoned the Applicant in relation to her overdue material. The Applicant did not answer the call and a voicemail message was left reminding her of the overdue material and requesting a return call. The Applicant did not return the Commission’s call. At 5.30 pm on 21 October 2019 correspondence was emailed to the Applicant’s nominated email address regarding her overdue material. The Applicant was requested to contact the Commission to advise if she intended to file submissions.

[12] On 22 October 2019 the Commission again attempted to call the Applicant in regard to her overdue material. The Applicant did not answer the call and a voicemail message was left requesting a call back.

[13] On 23 October 2019 the Commission again emailed correspondence to the Applicant’s nominated email address in regard to her overdue material. The Applicant was asked to advise the Commission by 4.00 pm that day if she intended to file submissions. The Applicant was also advised that the matter was at risk of being listed for a Non-compliance hearing. The Applicant did not respond to this correspondence.

[14] As no response was received from the Applicant the Commission issued a Notice of Listing to the parties scheduling a Non-Compliance Hearing for 25 October 2019. An SMS text message was sent to the Applicant on 24 October 2019 reminding her that the Commission “has scheduled [the] matter for a non-compliance hearing on 25 October 2019 at 1pm via telephone. You will be called on this number.”

[15] The Non-Compliance Hearing proceeded before Deputy President Clancy on 25 October 2019. The Applicant could not be contacted. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with directions of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[16] Following the Non-Compliance Hearing, correspondence was sent to the Applicant by Express Post and also by email advising her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss her application by no later than 4.00 pm on 1 November 2019. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[17] To date, the Applicant has not filed any material with the Commission.

[18] Section 399A of the FW 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.

[19] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[20] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact her and has provided no explanation to the Commission for her failure to comply with the directions of the Commission.

[21] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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