Elaine Plackett v Suncare Community Services Ltd

[2022] FWC 850

[2022] FWC 850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elaine Plackett
v

Suncare Community Services Ltd

(U2022/182)

DEPUTY PRESIDENT LAKE BRISBANE, 12 APRIL 2022

Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.

1. On 31 December 2021, Elaine Plackett (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Suncare Community Services Ltd (the Respondent). The Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.

Legislation

1. Section 399A of the FW Act provides:

“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 other 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.”

Procedural background

1. This matter was listed for a staff conciliation on 17 March 2022 by telephone to see if the matter could be resolved between the parties. On 20 January 2022 the Applicant confirmed, by way of email to the Commission, that the contact number to be used during the conciliation was the same as provided on her original Application.

1. On 17 March 2022, the staff conciliation was attended by both the Applicant and the Respondent’s Representative. The matter was not resolved at this conciliation.

1. On that same day, the matter was allocated to my Chambers for determination of the merits of the application. A notice of listing and directions were sent from my Chambers on 29 March 2022 setting out dates by which the parties were to provide material in respect of the application and listing the matter for, inter alia, a Mention/Directions and Conference before me on 5 April 2022 at 1:30pm.

1. On 5 April 2022, my Chambers made five attempts to contact the application for the Mention/Directions and Conference proceeding. The Applicant did not answer.

1. At 2.38pm that afternoon, the Respondent’s Representatives filed with my Chambers and served on the Applicant a Form F1 seeking that the Applicant’s application be dismissed under s.399A of the Act.

1. The following day, at 10.31am on 6 April 2022, my Chambers wrote to the Parties in the following terms:

“Dear Parties,

I refer to the attached Notice of Listing and the five attempts to contact the Applicant yesterday afternoon for the telephone conference at 1:30 PM (AEST).

In light of the Applicant’s failure to attend the conference this morning, without notice of her inability to attend or any contact seeking an adjournment, the Deputy President must now turn his mind to whether the application should be dismissed for any failure of the Applicant to prosecute the matter.

Directions

The Applicant is directed to provide a written explanation as to the circumstances around her failure to attend today’s conference, and submissions as to why the matter should not be dismissed, in writing, to Chambers and copied to the Respondent by 10:00am (AEST) on Friday, 8 April 2022.

The Respondent is invited to provide any response to the Applicant’s request for the matter to proceed by hearing, in writing to Chambers and copied to the Applicant by 10:00am on Tuesday, 12 April 2022.

The Deputy President will then determine the matter of whether the application should be dismissed, relisted for conference, or proceed to a hearing as listed.

If the Applicant fails to file these submissions as directed, the application may be dismissed and it will be a matter for the Respondent whether it seeks an order for costs against the Applicant.

1. To date, the Applicant has made no further contact with my Chambers in relation to her matter.

Consideration

1. The Applicant has failed to attend a conference before me in respect of her matter. She has been provided with ample opportunity to provide an explanation for her absence but has not done so. The non-attendance and subsequent lack of response to Chambers attempts at communication by the Applicant has prompted the Respondent to make an application for the matter to be dismissed pursuant to s.399A of the Act.

1. The process undertaken has been in accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in his application being dismissed.

1. I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed. Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

[1] [2021] FWCFB 875 [57].

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