Deena Hughes v Goodstart Early Learning Limited

[2017] FWC 2175

[2017] FWC 2175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deena Hughes
v
Goodstart Early Learning Limited
(U2017/629)

COMMISSIONER MCKENNA SYDNEY, 18 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 20 January 2017, Deena Hughes (“the applicant”) made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy concerning her dismissal by Goodstart Early Learning Limited (“the respondent”).

[2] The initiating process indicates that the applicant was initially represented by United Voice – NSW Branch. The file record indicates the matter was listed for conciliation, by telephone, before a Fair Work Commission conciliator (“the conciliator”) on 23 February 2017. That same day, the conciliator sent correspondence which read, in part, “confirming that a proposal has been left on the table for the Applicant to consider, and respond to by 2pm on 24 February 2017.”

[3] On 28 February 2017, United Voice filed and served a Notice of Representative Ceasing to Act (albeit, for reasons which are not clear, that notice was not entered in the Commission’s database).

[4] On 16 March 2017, the conciliator made an entry in the Commission’s records which read:

“Follow-up email sent this morning enquiring as to the status of this matter. [Respondent] responded saying no response from [Applicant] despite 24/2 deadline. [Voicemail] left for [Applicant] on landline. No facility to leave a [voicemail] for [Applicant] on mobile, tried calling.”

[5] On 23 March 2017, the file was allocated to me as a regional matter. I caused correspondence to be sent to United Voice and the respondent, together with a notice of listing which included the directions for hearing. It emerged that United Voice had earlier ceased representing the applicant. In consequence, the same information was that same day re-issued to the applicant personally and the respondent.

[6] Correspondence that I instructed my Associate to send to the applicant on 29 March 2017 compendiously describes what next occurred in relation to listings scheduled on 28 March and 29 March 2017. Among other matters, the correspondence informed the applicant that the respondent’s representative had made an application on 29 March 2017 that the application should be dismissed pursuant to s.399A of the Act. That correspondence read as follows:

“Dear Mrs Hughes  

U2017/629 Hughes, Deena v Goodstart Early Learning Limited – s.394

I refer to the listings at 3.00pm (AEDT) on Tuesday, 28 March 2017 and at 3.00pm (AEDT) today, 29 March 2017.

Commissioner McKenna has instructed me to note the following:

1. In relation to the listing on 28 March 2017, there was no appearance by or on your behalf when the conference proceeding was scheduled to commence at 3.00pm. As a result of a telephone call made to you shortly after 3.00pm, you appeared briefly in the telephone proceeding before you disconnected from the call. Despite three subsequent attempts to contact you by telephone to ask that you dial-in to the proceeding, you did not dial-in.

2. In relation to the conference proceeding today, 29 March 2017, there was no appearance by or on your behalf.

Commissioner McKenna has also instructed me to note that the respondent’s representative today made an application pursuant to s.399A of the Fair Work Act 2009. That section provides:

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.

While the Commissioner did not dismiss the application today, she has instructed me to note that the Directions issued on 23 March 2017 require you to file and serve certain materials by no later than 5.00pm on Thursday, 13 April 2017. The Commissioner has instructed me to advise you to take notice that if your materials are not filed and served in accordance with the Directions, the application may be dismissed without further notice to you.” (Bold in original)

[7] The applicant did not file and serve and materials in accordance with the directions by
5.00pm on 13 April 2017.

[8] On 17 April 2017, the applicant sent emailed correspondence to my office, which was not copied to the respondent, which read:

“I have already told you know to accepting there offer – I will be contacting my legal solicitor –
thank you
Deena
Please stop sending me emails and ringing me” (sic)

[9] A few minutes later, the applicant sent further emailed correspondence to my office, which was not copied to the respondent, which read:

“I have said a number of times I don’t wish to accept there offer – there for I will get legal advise from my solicitor if this process keeps happening – I have witness to back me up.
I have said NO a number of times there offer and I don’t wish to here anymore of it
Thank You
Deena Hughes” (sic)

Consideration

[10] The applicant did not attend the Conference and/or Directions telephone proceeding on 28 March 2017 until after follow-up contact by my Associate. After very briefly coming on line (the quality of the reception was poor) the applicant disconnected herself from the call at the same time that I was in the process of asking her to hang-up and dial-in again. The applicant did not reconnect to the telephone proceeding despite three further attempts by my Associate to arrange for her to participate in the conference by telephone. Despite messages left for the applicant, she did not separately telephone my Associate later that day or the following day.

[11] There was no appearance by or on behalf of the applicant at the subsequent Conference and/or Directions telephone proceeding on 29 March 2017, nor any communication to my office concerning such non-attendance (including after the emailed correspondence sent by my Associate on 29 March 2017 advising that the application may be dismissed without further notice to her).

[12] The applicant has not made any type of formal or informal application seeking a variation of the directions.

[13] The applicant did not file any materials pursuant to the directions.

[14] In circumstances where the applicant has squarely advised that she wishes the Commission to “stop sending emails and ringing me”, and given the past history of matters, I consider there is no utility in sending further correspondence or relisting the matter concerning her failure to comply with the directions.

[15] So far as the respondent’s application pursuant to s.399A of the Act is concerned, I am satisfied the applicant has, within the meaning of s.399A(1)(a) of the Act, unreasonably failed to attend a conference conducted by the Commission and has also, within the meaning of s.399A(1)(b), unreasonably failed to comply with a direction of the Commission.

[16] In all the circumstances, an order dismissing the application issues with these reasons.

[17] As a corollary, the extant directions requiring the filing and service of materials on 4 and 11 May 2017 are vacated. A cancellation notice concerning the Arbitration Conference/Hearing that had been scheduled for 24 May 2017 will also separately issue.

COMMISSIONER

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