Brooke Butler v GG Employment T/A the Greener Grocer

[2019] FWC 5920

[2019] FWC 5920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brooke Butler
v
GG Employment T/A The Greener Grocer
(U2019/5560)

COMMISSIONER BISSETT MELBOURNE, 27 AUGUST 2019

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

[1] On 20 May 2019, Ms Brooke Butler (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which she said she had been unfairly dismissed by GG Employment T/A The Greener Grocer (Respondent).

[2] The matter was listed for conciliation on 2 July 2019 but was cancelled by the Commission on 1 July 2019 due to operational reasons. A Notice of Listing was issued to the parties on 2 July 2019 to confirm the reschedule conciliation details for 4 July 2019.

[3] Despite six attempts to telephone the Applicant on 4 July 2019, the conciliation did not proceed due to the Applicant’s failure to attend.

[4] On 24 July 2019 directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 25 to 27 September 2019. The Applicant was directed to file her material by no later than noon on Monday 12 August 2019. The Respondent was directed to file its material by no later than noon on Monday 2 September 2019.

[5] At 4.46 pm on 12 August 2019 the Commission wrote to the Applicant regarding her failure to file submissions by the required date. The Applicant failed to respond to the Commission’s correspondence.

[6] On 13 August 2019 the Commission telephoned the Applicant in relation to her overdue material. The Applicant answered the call and advised that she had not read the Commission’s email. The Applicant was advised that if she intends to pursue her unfair dismissal application she will immediately need to file materials or make a request for an extension of time to file her material. The Applicant was also advised that if she does not do this her application may be dismissed as a result of non-compliance. When the Applicant was asked if she intends to pursue her application and make submissions she replied “yep”.

[7] On 14 August 2019 the Commission again attempted to telephone the Applicant in relation to her overdue material. The Applicant did not answer the call and a voicemail message was left reminding her of her overdue material and requesting a return call. The Applicant failed to return the Commission’s call.

[8] Later that day, as no materials or request for an extension to file materials was received from the Applicant, a Notice of Listing was issued to the parties scheduling the Non-Compliance Hearing for 16 August 2019.

[9] The Non-compliance Hearing proceeded before me on 14 August 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 the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[10] Following the Non-Compliance Hearing, correspondence was sent to the Applicant, via express post, 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 4.00pm on Friday, 23 August 2019.

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

[12] 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.’

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

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

[15] 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. Apart from initially filing her application, the Applicant has provided no explanation to the Commission for either her failure to comply with directions or her failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application.

[16] An order 1 giving effect to this decision will be issued today.

COMMISSIONER

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