Brittany Watters v Medical + Aged Care Group T/A Maacg Medical Group Pty Ltd

[2019] FWC 5453

[2019] FWC 5453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brittany Watters
v
Medical + Aged Care Group T/A MAACG Medical Group Pty Ltd
(U2017/5354)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 19 May 2017, Ms Brittany Watters 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).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Watters stated that she was notified of her dismissal by Medical + Aged Care Group T/A MAACG Medical Group Pty Ltd (MAACG) on 8 May 2017, and that it took effect on the same day.

[3] The Form F2 named Ms Carolyn McInnes of Footner McInnes Wren Lawyers as Ms Watters’ representative, and was filed via email by Ms McInnes on her behalf. An amended Form F2 was also filed with the Commission by Ms McInnes on Ms Watters’ behalf on 22 May 2017, which contained pages that were missing on the initial Form F2 lodged on 19 May 2017.

[4] On 24 May 2017, a Notice of Listing was sent to the parties scheduling a conciliation for 13 June 2017.

[5] On 7 June 2017, the Commission received correspondence from Ms McInnes requesting an adjournment of the conciliation as Ms Watters was receiving medical treatment for the following 16 weeks.

[6] The conciliation was subsequently cancelled, and the matter was referred for further programming.

[7] On 16 June 2017, I reviewed the matter and caused a Notice to be sent to the parties, which stated:

“Deputy President Clancy, Termination of Employment Panel Head, has reviewed the above matter and has determined that it will not be listed for an Arbitration Conference/Hearing until further notice.

The Deputy President will require confirmation that the Applicant has the capacity to give instructions for the preparation of material for the hearing of this application.

Once the Applicant’s Representative notifies the Fair Work Commission that medical advice has been received to this effect, further Directions and Hearing Dates will be issued to parties.”

[8] Attempts to telephone Ms McInnes were made on 12 December 2017 and 19 February 2018. Voicemail messages were left by the Commission on each occasion, requesting Ms McInnes provide a status update on the matter.

[9] On 17 April 2018, the Commission sent email correspondence to Ms McInnes, requesting her to “advise the Commission if a medical certificate has been received to advise that the Applicant has the capacity to give instructions for the preparation of material for the hearing of this application.” The Commission received an automatic reply email which advised that Ms McInnes was no longer associated with the firm and provided the contact details of Ms Kathryn Footner.

[10] Based on this advice, the Commission forwarded the correspondence to Ms Footner on 19 April 2019. Ms Footner responded later the same day, advising the Commission that the firm “no longer holds instructions to act on behalf of Ms Brittany Watters.”

[11] On 30 April 2018, the Commission sent correspondence to Ms Watters via her nominated email address, requesting her to advise the Commission as to whether she had obtained a medical certificate in relation to her capacity to prepare materials for the hearing of her unfair dismissal application. Ms Watters did not respond to this correspondence.

[12] The Commission attempted to telephone Ms Watters on two occasions to her nominated telephone number on 23 May 2018. On both occasions, the phone rang out with no option to leave a voicemail message. A call was also attempted to Ms Watters’ father in law, Mr Glen Foss, who was listed as a contact person on her Form F2. A voicemail message was left, requesting Mr Foss return the Commission’s call.

[13] Following these attempted telephone calls on 23 May 2018, the Commission emailed correspondence to Ms Watters’ nominated email address again seeking her advice on whether she has obtained a medical certificate in relation to her capacity to prepare materials for the hearing of her unfair dismissal application.

[14] On 15 June 2018, the Commission again attempted to telephone Ms Watters, which was unsuccessful. Further correspondence was sent to Ms Watters’ nominated email address seeking an update on her medical capacity to prosecute her application.

[15] On 25 September 2018, the Commission telephoned Mr Foss and explained to him that the Commission required an update on Ms Watters’ health, given that her matter was currently on hold. Mr Foss advised that he would provide Ms Watters with the Commission’s contact information when he returned home.

[16] On 26 September 2018, a telephone conversation took place between Ms Watters and the Commission wherein she advised she was meeting with her doctor sometime the following week to assess whether she was fit to proceed with preparing for and participating in a hearing of her application. The Commission requested Ms Watters to provide updates on her situation and if she was deemed fit or otherwise, to provide a medical certificate to the Commission. Ms Watters was provided with the Commission’s contact number and email address, but did not make contact with the Commission as requested.

[17] On 31 May 2019, the Commission sent further correspondence to Ms Watters’ nominated email address, requesting that she contact the Commission to advise whether she intended on proceeding with her application and that she provide a medical certificate by no later than 30 June 2019. Ms Watters did not respond to this correspondence.

[18] On 3 July 2019, a Notice of Listing was sent to the parties scheduling the matter for a Telephone Mention on 17 July 2019. The Notice of Listing was sent to Ms Watters’ nominated email address and postal address via express post. On 16 July 2019, the Notice of Listing was returned to the Commission as it was unable to be delivered to Ms Watters’ nominated postal address, with the advice that she was not known at that address. However, the Commission did not receive a return email suggesting that the email was “undeliverable”, which suggests that the email was successfully sent to Ms Watters’ nominated email address.

[19] The Mention proceeded before me on 17 July 2019. Ms Watters could not be contacted. MAACG made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Watters’ failure to comply with the direction of the Commission.

[20] Following the Mention, correspondence was sent to Ms Watters’ nominated email address advising her of MAACG’s s.399A application. Ms Watters was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 29 July 2019. The correspondence also noted that if the Commission did not receive a response, Ms Watters’ application for relief from unfair dismissal may be dismissed.

[21] 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.”

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

[23] As Ms Watters did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[24] The power to dismiss an application if the non-compliance was unreasonable is discretionary. It is acknowledged that at least initially, Ms Watters had some health issues. However, despite the Commission having accommodated these for a period of over two years, Ms Watters has been unresponsive to the various attempts at communication by the Commission. Ms Watters did not provide the requested medical certificate to advise whether she was fit to proceed, despite this being discussed with her in September 2018. Since then, she has not responded to further email correspondence from the Commission and has not further explained her continued failure to comply with directions or her failure to attend the Mention on 17 July 2019.

[25] Ms Watters made her unfair dismissal application over two years ago. She does not appear to be interested in prosecuting her case any longer. Certainly, she has not evinced an intention to do so despite the many attempts by the Commission to contact her. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Watters’ application. This ends her unfair dismissal application.

[26] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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