Donna Edwards v The Trustee for the Arc Unit Trust T/A Arcare

[2018] FWC 329

[2018] FWC 329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna Edwards
v
The Trustee for The ARC Unit Trust T/A Arcare
(U2017/11509)

COMMISSIONER BISSETT MELBOURNE, 18 JANUARY 2018

Application for an unfair dismissal remedy.

[1] On 26 October 2017, Ms Donna Edwards made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Edwards said her dismissal took effect on 25 October 2017.

[2] The matter was listed for conciliation on 17 November 2017, however it did not resolve. On 21 November 2017, the Fair Work Commission (the Commission) issued a Notice of Listing containing hearing dates and directions for the filing of material to Ms Edwards, her then representative Mr Gary Pinchen of A Whole New Approach Pty Ltd (AWNA), and The Trustee for The ARC Unit Trust T/A Arcare (Arcare). Ms Edwards was directed to file an outline of submissions, any witness statements and other documentary material by no later than noon on Thursday 14 December 2017.

[3] On 24 November 2017, the Commission sent correspondence to the parties advising that the matter would be listed for a Member Assisted Conciliation, in order to provide a further opportunity to discuss settlement with the aid of a Member of the Commission. This correspondence noted that the parties were still required to file material in accordance with the directions previously issued.

[4] The matter was the subject of a Member Assisted Conciliation before Commissioner Cambridge on Wednesday 13 December 2017 which did not resolve it. In the afternoon of Thursday 14 December 2017, the Commission telephoned AWNA and enquired as to the status of Ms Edward’s material due at noon that day. The Commission was advised by AWNA that Mr Pinchen would return its call and provide an update as to this.

[5] AWNA later contacted the Commission via telephone and advised it would be ceasing to act for Ms Edwards. The Commission advised AWNA that a Form F54 – Notice of representative ceasing to act would need to be filed and it confirmed that one would be provided shortly. AWNA subsequently filed a Form F54 via email on Friday 15 December 2017.

[6] Later that day, the Commission telephoned Ms Edwards regarding her overdue submissions. Ms Edwards advised that she had not been notified by her former representative as to the reason it had ceased to act on her behalf. The Commission staff member advised Ms Edwards that if she wished to request an extension of time to file her submissions, she should provide an email outlining the circumstances relating to her request and include the amount of additional time she was seeking.

[7] As an extension request had not been received from Ms Edwards, the Commission telephoned her on Monday 18 December 2017 and was advised that she was having difficulties with her computer. The Commission advised Ms Edwards that in the absence of submissions or an extension request, her matter may proceed to a non-compliance hearing on Friday 22 December 2017. Ms Edwards said that she intended to go to the library and would try to provide something to the Commission later that day.

[8] On Tuesday 19 December 2017, the Commission attempted to telephone Ms Edwards on her mobile and landline numbers, however there was no answer to either call. An email was then sent to the parties, confirming that no material had been received from Ms Edwards by the compliance date. This correspondence advised that if Ms Edwards did not provide an extension request, or alternatively file her submissions by noon on Wednesday 20 December 2017, the matter would be listed for a non-compliance hearing. Later that day, the Commission received a telephone call from Ms Edwards who advised she was still experiencing difficulties with her computer but would try to send through an email request for an extension to file submissions.

[9] In the afternoon of Wednesday 20 December 2017, a Commission staff member telephoned Ms Edwards’ landline and spoke with her son who advised that she was unavailable. A message was subsequently left for Ms Edwards, advising that as neither submissions nor an extension request had been received from her, the matter would be listed for a non-compliance hearing.

[10] As Ms Edwards did not respond to the Commission’s correspondence, the matter was listed for a non-compliance hearing before Commissioner McKinnon on Friday 22 December 2017. Ms Edwards did not attend the hearing. Following non-compliance, Arcare was informed of its options with regard to s.399A of the Act and subsequently filed a Form F1 – Application on 5 January 2018, seeking the dismissal of Ms Edwards’ application due to her failure to comply with a direction of the Commission. Correspondence was then sent to Ms Edwards, advising her of Arcare’s s.399A application. Ms Edwards was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday 12 January 2018. This correspondence was sent to Ms Edwards via email and post. It was noted that if there was a failure to comply with the direction, Ms Edwards’ application would be dismissed.

[11] To date, Ms Edwards has not filed any material with the Commission in response to Arcare’ s.399A application.

[12] 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.

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

[14] As Ms Edwards did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Edwards has failed to respond to numerous attempts by the Commission to contact her. Besides initially filing her application and attending the conciliations, Ms Edwards has shown no willingness to prosecute her case and provided no explanation for either her failure to comply with directions or her non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Ms Edwards’ application.

[16] An order giving effect to this decision will be issued today.

COMMISSIONER

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