Ebony Mitchell v Medicine of Cosmetics T/A Medicine of Cosmetics

[2020] FWC 4621

[2020] FWC 4621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ebony Mitchell
v
Medicine Of Cosmetics T/A Medicine Of Cosmetics
(U2020/9565)

COMMISSIONER PLATT ADELAIDE, 1 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 13 July 2020, Ms Ebony Mitchell lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in relation to the termination of her employment with Medicine Of Cosmetics T/A Medicine of Cosmetics.

[2] Conciliation was unable to occur and the matter was allocated to my Chambers on 7 August 2020.

[3] On 10 August 2020, a Notice of Listing was sent to both parties notifying them of a Directions Conference to be held on 13 August 2020.

[4] The Directions Conference was held on 13 August 2020 for the purpose of programming the matter for Hearing. Despite numerous attempts made by my Associate to contact the Applicant by telephone, there was no appearance by Ms Mitchell. Ms Hayley Batson attended on behalf of the Respondent.

[5] Formal Directions were issued on 13 August 2020 and the matter was set down for Hearing on 24 September 2020. The Directions required the Respondent to file a form F3 Employer Response by 4.00pm 20 August 2020, both parties’ submissions, witness statements and documents that they sought to rely upon were due by 4.00pm 27 August 2020 with material in reply due 4.00pm 3 September 2020. Links to a number of documents designed to assist the preparation of the party’s material were provided.

[6] The form F3 Employer Response was not received until 27 August 2020.

[7] Neither party filed their material on 27 August 2020.

[8] On 28 August 2020, my Associate sent an email advising the parties that their material was overdue. Both parties were given an extension until 8.00am 31 August 2020 to file their material and were advised that should no material be received, the matter will be called on at short notice for a Non-Compliance Conference by telephone. The parties were also placed on notice of the possible consequences, including the dismissal of the application.

[9] Ms Mitchell telephoned my Chambers on 28 August 2020 in response to the email and advised that she was unaware that she had to file material as she thought it was the Respondent who was required to file. My Associate referred Ms Mitchell to the Directions and directed her to the links to the website where templates could be found to assist with preparing her material. Ms Mitchell advised that she would start preparing the material straight away.

[10] Neither party filed any material by 8.00am 31 August 2020.

[11] The matter was listed for a Non-Compliance Conference at 3.00pm on 31 August 2020. An email was also sent to the parties advising that the Non-Compliance Conference would proceed even if the parties failed to attend, and that non-attendance may also result in the application being dismissed. Ms Chapman, on behalf of the Respondent, telephoned my Chambers at 2.00pm advising that she had filed the form F3 Employer Response already. My Associate notified Ms Chapman that the Non-Compliance Conference was in relation to the filing of substantive material, as per the Directions. Ms Chapman confirmed that she would advise Ms Batson of the Conference.

[12] At 3.00pm on 31 August 2020, neither party dialled into the Conference. My Associate attempted to telephone both the Applicant and Respondent and left voice messages advising that if they did not attend by 3.10pm, the matter would proceed in their absence and that the unfair dismissal application may be dismissed. An email was also sent to the parties confirming the same.

[13] At 3.15pm, I proceeded with the Non-Compliance Conference.

Consideration

[14] Section 587 of the Act provides as follows:

“Dismissing applications

(1)  Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)  the application is not made in accordance with this Act; or

(b)  the application is frivolous or vexatious; or

(c)  the application has no reasonable prospects of success.

Note:          For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2)  Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)  is frivolous or vexatious; or

(b)  has no reasonable prospects of success.

(3)  The FWC may dismiss an application:

(a)  on its own initiative; or

(b)  on application.”

[15] It appears that the Applicant has not taken any positive steps to prosecute her case and/or comply with the Commission’s Directions. Taking into account the Applicant’s failure to attend the Directions Conference on 13 August 2020, failure to comply with the Directions issued 13 August 2020 and failure to attend the Non-Compliance Conference on 31 August 2020, I have determined to dismiss the application under s.587(1)(c) of the Act.

[16] An Order 1 reflecting this Decision will be issued.

COMMISSIONER

Appearances:

No appearance by the Applicant or Respondent.

Hearing details:

2020.
Adelaide:
August 31.

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