Chantel Norman v The Ismar Family Trust T/A Perth Inflight Catering

[2015] FWC 5883

[2015] FWC 5883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chantel Norman
v
The Ismar Family Trust T/A Perth Inflight Catering
(U2015/7894)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 25 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 26 May 2015 Miss Chantel Norman made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Norman’s employment had been terminated by The Ismar Family Trust T/A Perth Inflight Catering (Perth Inflight – the Respondent). As the application had been lodged 72 days outside the statutory timeframe for lodgement, the Fair Work Commission (the Commission) issued Directions on 6 July 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[1] The application was listed for a jurisdiction conference/hearing by video link at 12.30 pm (WA time) on Tuesday, 21 July 2015.

[2] At 10.25 am (WA time) Miss Norman phoned Ms Barrington from the Commission’s Perth office and left a voice mail saying that she was sick and could not attend the hearing as she was unwell. Miss Norman also advised that she could supply a medical certificate. She left her mobile number and asked that she be contacted. Shortly thereafter, Miss Norman also sent an email to the chambers of Deputy President Gooley, the relevant Panel Head, advising that she would be unavailable to attend the hearing and that she had left an earlier voicemail with Ms Barrington.

[3] On receipt of the voice message and email my Associate contacted Miss Norman who confirmed that she was unwell. My Associate advised Miss Norman that the Commission would require the medical certificate and that once that had been received the matter would be relisted.

[4] In late July 2015 Mr Luca Galmazzi, the representative of the Applicant, called my chambers and advised my Associate that he would be in the city (Perth) that day and would drop off the Applicant’s medical certificate. Nothing was received by the Perth Registry and on 3 August 2015 my Associate emailed Mr Galmazzi advising him that no medical certificate had been received and that the matter would not be relisted until the medical certificate had been received. No response was received to this email.

[5] On 5 August 2015 an email was sent to Miss Norman forwarding the email sent to Mr Galmazzi on 3 August 2015, reminding her that the medical certificate had not been received and advising her that if the Commission did not hear from her by close of business on 12 August 2015 it would be assumed that she did not want to proceed with her application.

[6] On 11 August 2015 an email was sent by Miss Norman advising that she had misplaced the medical certificate and was currently in the process of obtaining a replacement copy from the locum doctor who had attended to her.

[7] On 14 August 2015 a further email was sent to Miss Norman advising her that if a medical certificate was not received by close of business on Monday, 17 August her application may be dismissed. Nothing further has been heard from Miss Norman.

[8] On 20 August 2015 the Commission received an email from Ms Airey, the solicitor for the Respondent, asking that the Commission exercise its powers to dismiss this matter pursuant to s.399A of the Act.

[9] 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.”

[10] In the absence of any response from Miss Norman to the Commission’s most recent correspondence to her, I am satisfied that Miss Norman has unreasonably failed to attend a hearing held by the Commission. In coming to that view I have had regard to Miss Norman’s failure to respond to repeated requests by the Commission for her to provide a medical certificate for her non-attendance at the hearing on 21 July 2015.

[11] Accordingly, the application will be dismissed in accordance with s.399A of the Act. An order giving effect to this will be issued with this decision.

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