Corinne Brooke Cavanough v Smith Trading Trust T/A Smiths Lawyers

[2020] FWC 2656

[2020] FWC 2656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Corinne Brooke Cavanough
v
Smith Trading Trust T/A Smiths Lawyers
(U2020/3292)

DEPUTY PRESIDENT LAKE BRISBANE, 20 MAY 2020

Application for an unfair dismissal remedy - application dismissed – s 399A.

[1] This decision concerns an application by Ms Corinne Cavanough (the Applicant) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Smith Trading Trust (the Respondent) and claimed that she was unfairly dismissed.

[2] The Applicant lodged her Form F2 Unfair Dismissal Application on 19 March 2020. A Form F3 Employer Response was filed by the Respondent on 23 April 2020. The matter was allocated to my Chambers for hearing and determination on 28 April 2020.

[3] Directions were sent to the parties on 8 May 2020. These directions listed a conference for 13 May 2020 and noted that the Applicant’s submissions were due by 4:00 pm on 25 May 2020.

[4] Initially there was some difficulty in reaching both parties. The Respondent’s email address had been recorded incorrectly and therefore they did not receive the Notice of Listing. A phone call shortly after the start of the conference confirmed that the Respondent never received this notice, but they became immediately available to attend at short notice. The Applicant at all times remained unavailable for contact, failing to answer her phone on numerous occasions. Further, no return call was received in response to a voicemail message left.

[5] At my request, my Chambers sent the following correspondence to parties at 11:47 am on 13 May 2020:

“Dear parties

A conference was due to proceed today at 11am before Deputy President Lake. I attach the Notice of Listing. Chambers instructs that both parties make contact in the next 48 hours advising of the reason for their failure to attend the conference.

The Deputy President directs that a failure of the Applicant to comply with a direction of the Commission can result in the claim being dismissed as frivolous or vexatious under s 587(1)(b) or otherwise, under s 399A(1)(b) of the Fair Work Act 2009, on application by the Respondent.”

[6] The Respondent promptly contacted Chambers as I detailed above. Chambers did not receive any material from the Applicant. On 19 May 2020, my Chambers sent the following email:

“Dear parties

The Deputy President notes that the Applicant was directed on 13 May 2020 to make contact with Chambers by 15 May 2020. This has not been complied with.

The Deputy President directs that a failure to make contact by midday today will result in the Application being dismissed either as vexatious, or under s 399A by application by the Respondent.

Kind regards”

[7] Once again, no contact was received and at 12:16pm, 19 May 2020 the Respondent sent through a duly completed Form 1. The Application concerned a request for dismissal under s.399A of the Act. It stated:

“The Applicant seeks to dismiss the Application commenced by Ms Corinne Brook Cavanough bearing matter number U2020/3292 in accordance with section 399A of the Fair Work Act 2009 (the “FWA”) on the following basis:

1. Ms Cavanough failed to attend a conference/directions hearing scheduled for 13 May 2020 at 11.00am by way of telephone before Deputy President Lake in accordance with the Notice of Listing.

2. Ms Cavanough failed to respond to email correspondence from [the Associate to Deputy President Lake] dated 13 May 2020 despite requesting contact be made within 48 hours advising of the reason for her failure to attend the conference. In such correspondence it is noted that The Deputy President directed that a failure of the Applicant to comply with a direction of the Commission can result in the claim being dismissed as frivolous or vexatious under s 587(1)(b) or otherwise, under s 399A(1)(b) of the Fair Work Act 2009, on application by the Respondent.

3. Ms Cavanough failed to respond to further email correspondence from [the Associate to Deputy President Lake] dated 19 May 2020 despite requesting contact be made by Midday 19 May 2020. The Deputy President indicated that the Applicant was directed on 13 May 2020 to make contact with Chambers by 15 May 2020 and that such request was not complied with. In such correspondence the Deputy President directed that a failure to make contact by midday 13 May 2020 will result in the Application being dismissed either as vexatious, or under s 399A by application by the Respondent.

4. To date Ms Cavanough has failed to comply with directions made by the FWC despite repeated warnings that such failure will result in the Application being dismissed.”

[8] Since the initial conference, my Chambers has not received any other correspondence from the Applicant.

[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.

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”

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

[11] As the Applicant has shown no willingness to prosecute her case, I have decided to determine the application on the papers.

[12] Upon consideration the Applicant did not provide any reasons or file any material in opposition to the application to dismiss and has failed to attend a conference and comply with directions to attend a conference, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal under s.399A(1)(a) and (b) of the Act. I order accordingly.

DEPUTY PRESIDENT

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