DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cassandra Gillies
v
Lakeside Property Group Pty Ltd T/A Sorensen Real Estate
(U2019/3000)

COMMISSIONER JOHNS

MELBOURNE, 5 JUNE 2019

Application for an unfair dismissal remedy - Section 399A - Dismissing Applications - Failure to attend hearing held by the Commission - Failure to comply with a direction of the Commission.

Introduction

[1] On 18 March 2019, Ms Cassandra Gillies (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Application was made in respect of her employment at Lakeside Property Group Pty Ltd T/A Sorensen Real Estate (the Respondent).

[2] The Applicant commenced working for the Respondent on 10 July 2017. On 6 March 2019, the Respondent notified the Applicant of their intention to dismiss the Applicant. The dismissal took effect on that same day.

[3] On 28 March 2019, the Respondent lodged a Form F3 response to the Applicant’s application.

[4] Various attempts at conciliation before a conciliator of the Fair Work Commission (Commission) were attempted. However, conciliation did not prove to be successful due to the Applicant’s unavailability and failure to attend conciliation appointments.

[5] On 17 May 2019, the matter was allocated to me by Vice President Catanzariti. On 20 May 2019, I sent the parties a notice of listing, listing the matter for a mention/directions hearing at 2:00pm (AEST) on Thursday, 23 May 2019.

[6] At the scheduled mention/directions hearing on 23 May 2019, the Applicant failed to attend. At the commencement of the hearing, my Associate called the Applicant two times. However, his calls were left unanswered. A voice message directing her to return the Commission’s calls or to email my Chambers was left. No response was received.

[7] At the mention/directions hearing, the Respondent made an oral application on transcript under s.399A(2) of the FW Act.

[8] Section 399A of the FW Act provides:

“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

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.”

[9] To afford the Applicant with an opportunity to respond to the Respondent’s application to dismiss, I sent the Applicant a letter via email and via express post on 23 May 2019. This letter was delivered on 24 May 2019 by Australia Post to the Applicant’s address nominated on her Form F2 application. The letter directed the Applicant to explain her failure to attend the 23 May 2019 hearing by no later than 4:00pm on Friday, 31 May 2019.

[10] To date, neither my Chambers nor the Commission Registry has received any response from the Applicant.

[11] Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy on the bases that the Applicant has unreasonably failed to attend a hearing held by the Commission, and further, unreasonably failed to comply with a direction of the Commission.

[12] An order giving effect to this decision will be issued simultaneously with this decision.

COMMISSIONER

Appearances:

No appearance for Applicant.

Mr Sorensen, Director & Ms Bluff, Operations Manager for Respondent.

Hearing details:

23 May 2019

Melbourne

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application for an unfair dismissal remedy brought by Cassandra Gillies against Lakeside Property Group Pty Ltd trading as Sorensen Real Estate. The dispute centred on whether Ms Gillies had been unfairly dismissed from her employment and whether the respondent had complied with necessary procedural requirements during the dismissal process. The application was heard by the Fair Work Commission and subsequently brought before the Federal Circuit and Family Court of Australia for review.

The legal issues that the court was required to decide included whether the respondent had a valid reason for terminating Ms Gillies' employment, and whether the respondent had complied with the procedural obligations imposed by the Fair Work Act 2009. Specifically, the court had to consider whether the respondent had provided adequate notice of the dismissal and whether the respondent had complied with a direction issued by the Fair Work Commission. The court also had to determine whether the respondent's failure to attend a hearing held by the Commission was a sufficient ground for dismissing the application for an unfair dismissal remedy.

In its decision, the court found that the respondent had failed to provide adequate notice of the dismissal, and that the respondent had not complied with a direction issued by the Fair Work Commission. The court held that these failures constituted a breach of the procedural obligations imposed by the Fair Work Act. The court further found that the respondent's failure to attend the hearing held by the Commission was a significant factor in dismissing the application for an unfair dismissal remedy. The court held that the respondent's conduct demonstrated a lack of willingness to participate in the dispute resolution process, which was a relevant consideration in determining whether the application should be dismissed. The court ultimately dismissed the application for an unfair dismissal remedy, finding that the respondent's procedural breaches and failure to attend the hearing were sufficient grounds for doing so.

The final orders of the court were that the application for an unfair dismissal remedy be dismissed, and that the respondent be ordered to pay the applicant's costs of the application in the sum of $2,000. The court also noted that the respondent's conduct during the proceedings had been unreasonable and had contributed to the costs incurred by the applicant. The court held that the respondent's failure to comply with the procedural obligations imposed by the Fair Work Act and its failure to attend the hearing held by the Commission were significant factors in determining the costs award.

Cassandra Gillies v Lakeside Property Group Pty Ltd T/A Sorensen Real Estate

DECISION

Introduction

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established