Briana Beu v Agile Group (APAC) T/A Agile Group

[2020] FWC 502

[2020] FWC 502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Briana Beu
v
Agile Group (APAC) T/A Agile Group
(U2019/13029)

COMMISSIONER PLATT ADELAIDE, 31 JANUARY 2020

Application for an unfair dismissal remedy – failure to participate in proceedings – s.399A application – application dismissed.

Summary

[1] This decision deals with an application by Agile Group (APAC) T/A Agile Group (Agile) pursuant to s.399A of the Fair Work Act 2009 (Agile) to dismiss an unfair dismissal application lodged by Ms Briana Beu on 22 November 2019.

[2] On 19 December 2019, Agile filed a form F3 Employer Response.

[3] The application did not resolve by Conciliation.

[4] The matter was allocated to my Chambers on 2 January 2020.

[5] A Directions Conference was held on 13 January 2020. Ms Beu did not attend. My Associate contacted Ms Beu by telephone who answered the call and then disconnected from the call. Mr Love, of counsel, appeared on behalf of Agile.

[6] Directions were issued by email and post on 13 January 2020 which required Ms Beu to file material by 23 January 2020. No material was filed.

[7] On 23 January 2020, Agile filed written submissions seeking permission to be represented in accordance with the Directions.

[8] On 23 January 2020, Agile filed a Form F1 Application seeking that the substantive application be dismissed pursuant to s.399A as a result of Ms Beu’s failure to attend conferences and filing material. The application was listed for Hearing, by telephone, on 31 January 2020.

[9] On 24 January 2020, my Associate wrote to Ms Beu advising her of the s.399A application, the Hearing date and the importance of attending. Ms Beu was advised that a failure to attend the Hearing would most likely result in the application being heard in her absence and her substantive application being dismissed.

[10] Ms Beu did not attend the Hearing on 31 January 2020, my Associate was able to contact her by telephone but Ms Beu appeared to disconnect when invited to be transferred into the Commission Hearing.

[11] The matter proceeded in the absence of Ms Beu. Mr Love, of counsel, represented Agile with permission being granted pursuant to s.596 of the Act.

[12] Mr Love reiterated the submissions contained in the Form F1 Application. Mr Love directed me to the decisions of Newbond v GM Holden Ltd[2015] FWC 6024 and Allen v Army and Air Force Canteen Service [2013] FWC 9209.

[13] Section 399A of the Act states:

“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.”

Findings

[14] The Commission’s communications were directed to Ms Beu using the contact details provided within her application, including a telephone number, email address and postal address.

[15] The failure of Ms Beu to comply with the Directions and attend the Directions Conference and Hearing satisfies the requirements of s.399A(1)(a) and (b) of the Act.

[16] In my view, Ms Beu’s conduct is unreasonable as she has failed to prosecute her application after it was lodged.

[17] In my view, it is appropriate to exercise my discretion to dismiss Ms Beu’s application pursuant to s.399A of the Act. An Order¹ to this effect will be issued.

COMMISSIONER

Appearances:

No appearance by the Applicant.

J.Love of Counsel on behalf of the Respondent.

Hearing details:

2020.

Adelaide.

31 January 2020.

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