Christine Woodham v Anglogold Ashanti Australia Limited T/A Anglogold Ashanti Australia
[2023] FWC 3123
•30 NOVEMBER 2023
| [2023] FWC 3123 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christine Woodham
v
Anglogold Ashanti Australia Limited T/A Anglogold Ashanti Australia
(U2023/9718)
| COMMISSIONER LIM | PERTH, 30 NOVEMBER 2023 |
Application for an unfair dismissal remedy – Section 399A – Dismissing applications – Failure to attend a conference
On 6 October 2023, Christine Woodham (the Applicant) applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Unfair Dismissal Application). The Applicant alleges Anglogold Ashanti Australia Limited T/A Anglogold Ashanti Australia (the Respondent) unfairly dismissed her.
On 17 November 2023, the Respondent applied for the Unfair Dismissal Application to be dismissed pursuant to s 399A of the Act (s 399A Application).
For the reasons that follow, I grant the s 399A Application and dismiss the Unfair Dismissal Application.
Background
The Unfair Dismissal Application was listed for conciliation before a staff conciliator on 13 November 2023. However, the Applicant did not attend. The Applicant also did not provide notice that she would not be attending.
Following the staff conciliation, the Fair Work Commission sent a letter to the parties stating that:
“I confirm that the conciliation listed today in the above matter did not proceed because of the unavailability of the Applicant. I called the number provided for the Applicant several times but there was no answer. I left voice mail messages. I have not yet heard from the Applicant.
If you want this matter to proceed via a further conciliation, then you need to email me your request within two working days, together with advice of ant dates or times for which you would be unavailable. Can you please provide details as to why you were unable to attend/participate. I will then refer your request to the Unfair Dismissal Team in Melbourne for consideration. Any such request will be dealt with having regard to all the circumstances.
If I do not hear from you within the next two working days I will refer the matter directly for arbitration before a Member of the Fair Work Commission.”
On 16 November 2023, the matter was allocated to my Chambers.
On 17 November 2023, the Respondent made the s 399 Application on the basis that the Applicant did not attend the staff conciliation on 13 November 2023 and did not respond to the Commission’s letter dated 13 November 2023.
My Chambers issued Directions on 17 November 2023 directing the parties to file submissions and evidence in support of their positions on the s 399A Application. The matter was listed for a directions hearing on 27 November 2023.
On 22 November 2023, the Applicant’s representative filed submissions stating that the Applicant was unable to attend the conciliation on 13 November 2023 because she flew out to commence new employment on that day. Further, that the Applicant had requested an adjournment of the conciliation but her request was refused.
On 24 November 2023, the Respondent filed further submissions in support of the s 399A Application, contending that the Respondent was not notified or aware of any adjournment requests sought by the Applicant or her inability to attend the conciliation.
The Applicant did not attend the directions hearing on 27 November 2023. The Applicant’s representative informed Chambers that the Applicant was aware of the directions hearing and that she had not been successful in her attempts to contact the Applicant that day. My Chambers called the Applicant twice, but the Applicant did not answer.
Despite the Applicant’s absence, the directions hearing proceeded with the Respondent and the Applicant’s representative. At the directions hearing, permission was granted to the Respondent to amend their s 399A Application to include the Applicant’s non-attendance at the directions hearing.
Following the directions hearing, my Chambers directed the Applicant to provide any response to the amended s 399 Application and to explain her failure to attend the directions hearing by midday, 28 November 2023.
At 4:46pm, 28 November 2023, the Applicant’s representative provided a screenshot of the Applicant’s roster that showed that the Applicant was travelling on 27 November 2023 and indicated that this was the reason why the Applicant did not attend the directions hearing. No further information was provided.
Consideration
Section 399A of the Act states 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.
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.”
The Respondent’s grounds for the s 399A Application are that the Applicant failed to:
(a)attend a conference conducted by the FWC by not attending the staff conciliation on 13 November 2023; and
(b)attend a hearing held by the FWC by not attending the directions hearing on 27 November 2023.
I will deal with each of these in turn.
The staff conciliation on 13 November 2023
The Respondent submits that the staff conciliation on 13 November 2023 constitutes a conference conducted by the FWC.
“FWC” is defined in section 12 of the Act as the body continued in existence in section 575.
Section 575 of the Act sets out:
“Establishment of the Fair Work Commission
(1)The body known immediately before the commencement of this subsection as Fair Work Australia is continued in existence as the Fair Work Commission.
(2)The Fair Work Commission consists of:
(a) the President; and
(aa) 2 Vice Presidents; and
(b) such number of Deputy Presidents as, from time to time, hold office under this Act; and
(c) such number of Commissioners as, from time to time, hold office under this Act; and
(d) such number of Expert Panel Members as, from time to time, hold office under this Act.”
This definition of FWC does not include the staff who conduct the unfair dismissal conciliations.
I find that the staff conciliation that was listed for 13 November 2023 does not constitute a conference conducted by FWC pursuant to s 399A(1)(a). Accordingly, the Unfair Dismissal Application cannot be dismissed for the Applicant’s failure to attend the staff conciliation.
For completeness, I also note that the Applicant was only required to respond to the 13 November letter if she wished to make a request for a further conciliation with Commission staff member. The Applicant’s lack of response to the 13 November letter has no significance in terms of s 399A of the Act.
The directions hearing on 27 November 2023
I find that the directions hearing on 27 November 2023 does constitute a hearing conducted by the FWC as contemplated by s 399A(1)(a) of the Act.
A notice of listing for the directions hearing was sent to the parties on 17 November 2023. My Chambers informed the Applicant that the Respondent had made the s 399A Application. The email from Chambers also contained the following:
“If a party fails to comply with these directions or fails to attend the directions hearing on 27 November 2023, the Commissioner will proceed to determine the s 399A application in their absence.”
I note that the roster provided by the Applicant’s representative shows rostering for the Applicant from 13 November 2023 to 30 November 2023. This means that when the notice of listing was sent out on 17 November, the Applicant knew that she would not be able to attend the directions hearing. Despite this, she did not contact my Chambers to seek an adjournment.
I find that the Applicant unreasonably failed to attend the directions hearing.
I am satisfied that the requirements of s 399A(1)(a) have been met, I therefore dismiss the Unfair Dismissal Application.
COMMISSIONER
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