Brittany Birrell v Monash Health

[2022] FWC 286

[2022] FWC 286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brittany Birrell

v

Monash Health

(U2021/10973)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 FEBRUARY 2022

Application for an unfair dismissal remedy.

1. On 30 November 2021, Ms Brittany Birrell made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In her Form F2 – Unfair Dismissal Application (Form F2), Ms Birrell said her employment had been terminated by Monash Health and that the termination took effect on 9 November 2021. In her Form F2, Ms Birrell provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Ms Birrell received a response that it was “undeliverable”.

1. On 14 December 2021, a Notice of Listing was sent to the parties scheduling a telephone conciliation before a Commission staff member to take place on 18 January 2022 at 11:15am. The Commission’s records indicate Ms Birrell was also advised of this during a telephone call with a Commission staff member on 14 December 2021. However, the telephone conciliation did not proceed on 18 January 2022 because Ms Birrell was not contactable at the appointed time. Further, Ms Birrell did not respond to contact from the Commission.  The matter was allocated to me on 19 January 2022.

1. On 2 February 2022, an email was sent from my Chambers to the parties scheduling a Mention to take place by telephone at 10:00am on 4 February 2022. Ms Birrell’s nominated email address was used. It was communicated in the email that the purpose of the Mention was to discuss an ‘out of time objection’ made by Monash Health and the further case management of Ms Birrell’s unfair dismissal application. On 3 February 2022, a Notice of Listing confirming the date and time of the Mention was sent to the nominated email addresses of the parties. The parties were requested to provide their telephone numbers in advance so that they could be contacted for the Mention. However, the Mention proceeded in the absence of Ms Birrell because she had not responded to any of the emails regarding the Mention and nor had she answered any of the three telephone calls made to her nominated mobile telephone number.

1. At the Mention, Monash Health made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Birrell’s failure to attend both the Mention on 4 February 2022 and the conciliation on 18 January 2022. I waived compliance with the Fair Work Commission Rules 2013 and accepted Monash Health’s oral application.

1. Following the Mention, correspondence was sent to Ms Birrell’s nominated email address advising her of Monash Health’s s.399A application. Ms Birrell was directed by me to file submissions explaining why she had failed to attend both the Mention on 4 February 2022 and the conciliation on 18 January 2022. It was stated in the email that Ms Birrell’s response was required by no later than 4:00pm on Friday 11 February 2022. The correspondence also cautioned that if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission and Ms Birrell’s unfair dismissal application would likely be dismissed without further notice.

1. By 4.00pm on 11 February 2022, Ms Birrell had not filed any material with the Commission in response. There has been no response from her at all since the conclusion of the Mention.

1. Section 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.

....

(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.

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. As Ms Birrell did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance is considered to have been unreasonable is discretionary. Other than initially filing her application, Ms Birrell has failed to actively prosecute her case and has provided no explanation to the Commission for her failure to attend either the Mention on 4 February 2022 or the conciliation on 18 January 2022.

1. I am satisfied that Ms Birrell has acted unreasonably in failing to attend both the conciliation and the Mention because she was advised of them in advance via the contact details she has provided and has made no response to the repeated Commission attempts to contact her. Further, I consider Ms Birrell has unreasonably failed to comply with my direction to respond to the s.399A application.  Having regard to the circumstances of this matter, I have determined that I should exercise my discretion under s.399A and dismiss Ms Birrell’s unfair dismissal application.  This ends Ms Birrell’s unfair dismissal application.

1. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

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