Candy Towers v Awabakal Local Aboriginal Land Council

[2017] FWC 4206

[2017] FWC 4206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Candy Towers
v
Awabakal Local Aboriginal Land Council
(U2017/6263)

COMMISSIONER SAUNDERS NEWCASTLE, 14 AUGUST 2017

Application for an unfair dismissal remedy – s.399A application made by employer – application dismissed

[1] This decision concerns an application made by Ms Candy Towers (Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Awabakal Local Aboriginal Land Council (Awabakal). I dismissed Ms Towers Application during a hearing by telephone this morning. These are my reasons for doing so.

Background

[2] Ms Towers filed her Application in the Fair Work Commission (Commission) on 12 June 2017. Awabakal lodged its response to Ms Towers’ unfair dismissal application on 26 June 2017,

[3] On 28 June 2017, a conciliation conference was conducted by the Commission and was unsuccessful in resolving the matter. Following the unsuccessful conciliation conference, the matter was allocated to my chambers on 5 July 2017.

[4] The matter was listed for a directions hearing, by telephone, on 12 July 2017 at 10:00am. A Notice of Listing was sent to Ms Towers’ nominated email address on 5 July 2017. At the directions hearing on 12 July 2017 there was no appearance by or on behalf of Ms Towers and she was unable to be contacted on her mobile number.

[5] On 13 July 2017 at approximately 11:30am, my Associate contacted Ms Towers on her mobile number and was advised by Ms Towers that she did not know about the listing on 12 July 2017. Ms Towers was asked to confirm her email address and confirmed that the email address she had nominated in her Application as her preferred means of receipt of documents from the Commission was correct. Ms Towers was then advised by my Associate that her Application would be listed for a directions hearing, by telephone, on 17 July 2017 at 2:00pm and to contact my chambers if she does not receive an email attaching a Notice of Listing for that directions hearing.

[6] The matter was listed for a second directions hearing, by telephone, on 17 July 2017 at 2:00pm. The applicant participated in that directions hearing. On 17 July 2017 the Commission made directions for the parties to file and serve outlines of submissions, witness statements, and other documentary material. The directions also gave notice to the parties that the matter was listed for hearing in Newcastle on 12 September 2017.

[7] Ms Towers was directed to file and serve her material by no later than 4.00pm on 7 August 2017. On 7 August 2017 at 1:15pm, Mr Towers sent an email requesting a one week extension to file and serve her material on the basis that she was “not ready to submit those by 4:00pm today. Please accept my apologies.” No other explanation was provided for the failure to comply with the direction.

[8] On 7 August 2017 at 4:41pm, the Commission made amended directions for the parties to file and serve outlines of submissions, witness statements, and other documentary material. The amended directions required Ms Towers to file and serve her material by no later than 4.00pm on 9 August 2017.

[9] The applicant failed to submit any material by 4.00pm on 9 August 2017 and therefore failed to comply with the amended directions of the Commission.

[10] On 10 August 2017 at 1:32pm, my Associate sent an email in the following terms to Ms Towers (copied to Awabakal):

“Dear Ms Towers,

I refer to your request on 7 August 2017 for a one week extension of the Directions issued on 17 July 2017 by Commissioner Saunders. Following consideration of your request the Commissioner granted you an extension of two days and Amended Directions were issued on 7 August 2017.

The Amended Directions directed you to file and serve your material by 4pm on 9 August 2017. We note that we have not received any material in accordance with this direction, or any other communication from you since 7 August 2017.

As a matter of urgency, you are directed to file and serve an outline of submissions, witness statements and other documentary material you intend to rely on in support of your application for an unfair dismissal remedy.

Please be advised that all email communication with our chambers must always be copied to the other side as a matter of standard protocol. The Commission will forward your correspondence to the other party if they have not been copied in.”

[11] The Commission did not receive any communication from, or on behalf of, Ms Towers in response to this email.

[12] On 11 August 2017 at 12:15pm, my chambers received an email (copied to Ms Towers) from Awabakal’s representative in the following terms.

“Dear Associate

I refer to the above matter and our correspondence yesterday, and note that the Applicant has still not complied with the amended directions issued by the Commission on 7 August 2017.

We request that this matter be listed for further directions early next week to address this issue. We also note that we reserve our right to make an application pursuant to s.399A, to dismiss the application due to the Applicant's failure to comply with a direction of the Commission.”

[13] The matter was listed for a directions hearing, by telephone, on 14 August 2017 at 9:00am. A Notice of Listing for the directions hearing on 14 August 2017 was sent to Ms Towers nominated email address on 11 August 2017 at 2:39pm.

[14] At the directions hearing on 14 August 2017 there was no appearance by or on behalf of Ms Towers. My Associate attempted to contact Ms Towers twice on her mobile number shortly after 9:00am on 14 August 2017. No contact was made and there was no voicemail facility to leave a message.

Legislation

[15] During the directions hearing on 14 August 2017, Awabakal made an application pursuant to s.399A of the Act for Ms Towers’ Application to be dismissed on the basis that Ms Towers had failed to attend the directions hearing and failed to comply with directions of the Commission relating to the Application.

[16] Section 399A of the Act provides as follows:

“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 powers under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[17] The discretion of the Commission to dismiss an application under s.399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

Conclusions

[18] There has been an application by the employer, Awabakal, in accordance with s.399A(2) of the Act.

[19] I am satisfied that Ms Towers failed to attend a hearing held by the Commission, namely the directions hearing at 9:00am on 14 August 2017, and failed to comply with directions of the Commission relating to her Application, namely the directions made on 17 July 2017 and the amended directions made on 7 August 2017. I am also satisfied that Ms Towers’ failures to attend the directions hearing and comply with the directions and amended directions were unreasonable, because Ms Towers:

• was informed in writing of the directions and amended directions;



• was given notice in writing of the directions hearing on 14 August 2017;



• has not provided any proper reason or explanation for her failure to comply with the directions or amended directions;



• did not seek an adjournment of the directions hearing on 14 August 2017; and



• has still not filed or served any witness statements, submissions or documents in support of her Application, notwithstanding that directions were made almost one month ago (17 July 2017) for her to do so.

[20] In all the circumstances of this case, I consider it appropriate to exercise my discretion pursuant to ss.399A(1)(a) and (b) of the Act to dismiss Ms Towers’ Application.

COMMISSIONER

 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]

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