Courtney Singh v Integrity Care & Support Pty Ltd

[2021] FWC 556

[2021] FWC 556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Courtney Singh
v
Integrity Care & Support Pty Ltd
(U2020/13201)

DEPUTY PRESIDENT LAKE BRISBANE, 4 FEBRUARY 2021

Applicant for an unfair dismissal remedy – application dismissed – s 587.

[1] This decision concerns an application by Ms Courtney Singh (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant was employed Integrity Care & Support Pty Ltd (the Respondent) and claimed they were unfairly dismissed.

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 10 October 2020. A Form F3 Employer Response was filed by the Respondent on 14 October 2020. The matter was allocated to my Chambers for hearing and determination on 16 December 2020.

[3] Prior to allocation to my Chambers, the Applicant failed to provide a timely response to the direction of Vice President Catanzariti’s Chambers, requesting a response to the Respondent’s objections. The response was due on 8 December 2020. On 15 December 2020, the Vice President’s Chambers requested a response:

Dear Ms Singh and Ms Both,

U2020/13201 Singh, Courtney v Integrity Care & Support Pty Ltd

I refer to the above matter and the correspondence, below.

The Commission has not received a response. You are directed to respond by 4:00 pm on 18 December 2020. If we do not receive a response by then, your application may be dismissed without further notice to you.

(emphasis in original)

[4] On 15 December 2020, Applicant responded with one line indicating she wished to proceed and the matter was then allocated to my Chambers.

[5] On 17 December 2020, my Chambers sent the following email:

Dear parties,

I refer to the above matter which has been allocated to Deputy President Lake for consideration.

The Deputy President notes the Applicant is represented. Their representative is copied into this correspondence.

The Deputy President notes that the Respondent has raised several jurisdictional objections to the application, including that the Applicant had not met the minimum employment period required under s.382 and 383 of the Fair Work Act 2009 (the Act). The Deputy President further notes the Applicant was sent a letter on 1 December 2020 by the Chambers of Vice President Catanzariti which directed to file a statement, along with any documents or evidence, to these jurisdictional applications by no later than 8 December 2020.

The Deputy President notes that the Applicant replied on 15 December 2020 after the Chambers of Vice President Catanzariti sent follow-up correspondence on that day which directed that the Applicant respond by 4:00pm on 18 December 2020 and that, if no response was received, the application may be dismissed without further notice. The Applicant responded stating that they wished to proceed with their application, but the Deputy President notes that the no statement, documents, or evidence in response to the Vice President’s correspondence. Copies of the correspondence from the Vice President’s Chambers are attached.

In accordance with the 1 December 2020 correspondence, Deputy President Lake directs that the Applicant provide a statement, along with any documents or evidence, that the Applicant completed the required minimum employment period under s.382 and 383 of the Act by no later than 4:00pm AEST (QLD) tomorrow Friday 18 December 2020.

If these directions are not complied with, the application may be dismissed under s.587 of the Act and/or s.399A of the Act on application by the Respondent.

If parties have any queries or concerns, please contact Chambers at the contact details below.

(emphasis in original)

[6] The same day the Applicant then sent through a series of screenshots as evidence of her regular employment, with some information in the covering email.

[7] Following receipt of this information, directions were sent to the parties on 21 December 2020. The Respondent provided their submissions in line with the directions. The Applicant failed to provide submissions by 25 January 2021 and on 29 January 2021 the following email was sent:

Dear parties,

I refer to the above matter which is listed for telephone hearing before Deputy President Lake on Monday, 1 February 2021.

In accordance with the attached notice of listing and directions, Chambers is in receipt of the Respondent’s materials however it appears the Applicant has failed to file as directed.

Accordingly, a response by 9am Monday, 1 February 2021, is sought from the Applicant whether she seeks to proceed to the jurisdictional hearing or otherwise whether she seeks to discontinue this matter. A Form F50 notice of discontinuance is attached for the Applicant’s benefit.

Kind regards,

(emphasis in original)

[8] On 29 January 2021, the Applicant responded “yes we can proceed”, but did not provide any further material.

[9] On 1 February 2021, the Applicant failed to attend the hearing. The following email was sent:

Dear Ms Singh,

Reference is made to the above matter which is listed for Jurisdictional Telephone Hearing before Deputy President Lake this morning at 10am QLD time.

I have attempted to contact you on your mobile number and left two voice messages.

Please urgently respond to Chambers confirming your availability, and whether you would like to be dialled on an alternative number.

Kind regards,

(emphasis in original)

[10] The Applicant failed to make contact and on 1 February 2021, the following email was sent requesting reasons for the failure to attend:

Dear Ms Singh,

Further to the below correspondence and no contact from you in response to the voice messages or the below email, the Deputy President advises that this morning’s Jurisdictional Hearing will no longer be proceeding.

It is noted that a notice of listing and directions for filing of materials were sent to the parties on 21 December 2020. This notice of listing and directions confirmed the matter was listed for hearing by telephone at 10am Monday, 1 February 2021, and provided that the Applicant’s materials were to be filed by 25 January 2021.

You failed to file any written materials as directed, and have failed to make yourself available for and attend at this morning’s jurisdictional hearing, despite correspondence sent by you on Friday, 29 January 2021 that the matter should proceed to hearing as scheduled.

In light of these various matters, the Deputy President is now considering whether your application for unfair dismissal remedy should be dismissed. If you wish to proceed with your application, you are directed to provide reasons for your failure to file materials and to attend at this morning’s jurisdictional hearing, including reasons why your application should not be dismissed, in writing to Chambers and copied to the Respondent by tomorrow, 2 February 2020 at 5pm QLD time.

In the event you do not provide these written reasons as directed, your application for unfair dismissal remedy may be dismissed.

Kind regards,

(emphasis in original)

[11] The Applicant then called Chambers and the Associate relayed to her that the content above, given the failure to attend. The Associate confirmed that a written response was required as to why the matter should proceed and to look to her emails.

[12] The same day the Applicant responded that “I was unable to answer the phone due to where I work has bad reception and was still unable to get the day off” to which Chambers responded:

Dear Ms Singh,

The Deputy President notes the below correspondence.

As outlined, the notice of listing and directions in this matter provided that a hearing would be held on 1 February 2021 by telephone. In accordance with your correspondence of 29 January 2021, you indicated you wished to proceed to hearing. You therefore had a duty to ensure that you were ready, available and in an area with sufficient reception to be dialled in for the hearing.

As stated in the below correspondence, you have until 5pm tomorrow, 2 February 2021 to provide any formal and substantive reasons that you wish the Deputy President to take into consideration in determining whether or not your application should be dismissed.

Kind regards,

(emphasis in original)

[13] The Applicant failed to reply and a final opportunity was accorded to the Applicant on 3 February 2021:

Dear parties

Ms Singh, you were due to provide formal and substantive reasons for your failure to file by no later than 5pm AEST, Tuesday 2 February 2021. Chambers informed you that the email provided on 1 February 2021 did not constitute a substantive explanation and requested further material. At this point, no material has been received. Chambers  grants you a further extension and instructs that you provide a substantive explanation for the delay, and why your matter should not be dismissed, by no later than 5pm AEST, Wednesday 3 February 2021 (today).

The repeated lack of compliance with direction may be sufficient grounds to find that a matter has no reasonable prospect of success: Richard Carter v The Hanna Group Pty Ltd [2011] FWA 31. You must correspond with Chambers by the above date. This correspondence should provide a clear reason for the delay and lack of communication with Chambers. This is not the first correspondence Chambers has sent regarding your failure to pursue your claim and as such, reasonable steps have been taken to give the opportunity to proceed with your matter.

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. Should the Applicant fail to provide material by 5pm AEST today, a submission under s 399A is open to the Respondent.

A failure to respond by the above date will likely result in your matter being dismissed. It is imperative that you make contact with Chambers before 5pm today.

Ms Singh, If you no longer wish to pursue your claim, please contact Chambers or file a Form F50: Notice of Discontinuance (attached).

(emphasis in original)

[14] No documentation was received in line with Chambers direction and on 4 February 2021, Chambers attempted to call the Applicant, but there was no answer.

[15] I have concluded that in circumstances, the Applicant failed to attend at the Commission as directed, and failed to provide substantive reasons explaining that failure. In doing so, the Applicant has failed to prosecute their claim and has rendered the application with no reasonable prospect of success. In the alternative, if such an approach was found not to be sufficient, it is clear that ‘the introductory words in s.587(1) indicate, the circumstances in which the Fair Work [Commission] may dismiss an application are not limited to those matters in s.587 of the Act.’ 1

[16] I am satisfied that Chambers has taken appropriate steps to inform the Applicant of the consequences of failing to provide the relevant documentation. I am also satisfied that sufficient time and warning was given to comply and that the failure to comply is both disrespectful and unconstructive.

[17] The Applicant clearly has no intention of legitimately pursuing her claim. She has attempted to keep the matter alive by exerting less than the bare minimum effort; she failed to attend the hearing, despite indicating an intention to do so and failed to provide any adequate reasons, beyond a single line response.

[18] In line with the principles gleamed in Richard Carter v The Hanna Group Pty Ltd, 2 I find it is appropriate that I exercise my discretion to dismiss the Applicant’s unfair dismissal application pursuant to s 587.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812, [11] (DP Bartel).

 2   Richard Carter v The Hanna Group Pty Ltd [2011] FWA 31, [6] (DP Sams).