Elizabeth McKenzie v Brosnans Investigations Pty Ltd

[2014] FWC 6718

[2014] FWC 6718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth McKenzie
v
Brosnans Investigations Pty Ltd
(U2014/5823)

COMMISSIONER ROBERTS SYDNEY, 24 SEPTEMBER 2014

Application for relief from unfair dismissal, failure of applicant to attend arbitration proceedings - application by respondent pursuant to s.399A(1)(a) for application to be dismissed.

[1] This decision concerns an application lodged on 21 March 2014 by Ms McKenzie pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of her employment by Brosnans Investigations Pty Ltd (Brosnans).

[2] Following unsuccessful conciliation by a Fair Work Commission Conciliator on 6 May 2014, the matter was set down for hearing in Sydney on 7 and 8 August 2014. An application by Ms McKenzie to vacate those dates was refused by Deputy President Gooley on or about 2 June 2014. However, the hearing dates were later vacated in any event by the Commission. The matter was then set down for arbitration in Sydney on 11 and 12 September 2014. A notice of hearing to that effect was sent to the parties on 6 August 2014.

[3] On 1 September 2014, Ms McKenzie sent the following email addressed to “UDT Rosters” at the Commission’s Melbourne office:

“Please be advised that, due to my father's declining health, I have returned to live in WA for the foreseeable future.

My last correspondence provided to the FWC gave Mr Brosnan and [sic] very inexpensive option to deal with the matter before the courts. The option extended requests the payment of my base salary for four months in total: April through June. I feel this is more than reasonable and only slightly more than his hasty offer at conciliation.

If Mr. Brosnan rejects this I am requesting that my application be put on hold until I return to NSW. That could be as late as the end of 2015.

I am unable to appear in court on any date currently set so I will leave it to the FWC directive as to proceed with this matter.”

[4] The email was forwarded to my chambers by the UDT on the same day.

[5] On 2 September 2014, I directed my Associate to send the following email to Ms McKenzie:

“I refer to this matter and your email of 1 September.

Please note that this matter has been referred to Commissioner Roberts for hearing. Any future correspondence should be directed to our chambers and all correspondence with the Commission must be copied to the other party.

The Commissioner has decided to proceed to hear the matter as scheduled. FWC has an office in Perth and you can attend the hearing there by video link.”

[6] A further notice of listing was sent to the parties on 8 September 2014.

[7] On 10 September 2014 I directed my Associate to send a reminder email concerning the hearing. That email also asked Ms McKenzie to confirm her attendance by telephoning my Chambers. No response was received. At my further direction, my Associate telephoned Ms McKenzie on her mobile on 10 September 2014. The mobile phone was turned off and my Associate left a message again reconfirming the hearing scheduled for the following day and asking Ms McKenzie to confirm her attendance.

[8] Ms McKenzie failed to attend the hearing on 11 September 2014 and all attempts by my Associate to contact her met with no success as her mobile phone was turned off. Commission staff in Perth confirmed to my Associate that Ms McKenzie was not present in the court room or its precincts in Perth. Mr Brosnan attended the hearing in person in Sydney representing the Respondent. The hearing itself was delayed for a short period to give Ms McKenzie every opportunity to attend. Mr Brosnan then made the application which is the subject of this decision.

[9] After adjourning the hearing on 11 September 2014, I directed my Associate to send the following letter by email to Ms McKenzie:

“Re: U2014/5823 McKenzie v Brosnans Investigations Pty Ltd

On 2 September 2014 I wrote to advise you that Commissioner Roberts had refused to adjourn the hearing and that the matter would proceed to arbitration as scheduled on 11 and 12 September 2014. You were also advised that a video link had been organised in Perth for you to attend the hearing.

I note that you did not attend the scheduled hearing today and that unsuccessful attempts were made to contact you on your mobile number. It is further noted that a voice message was left on your mobile and an email sent to you yesterday reminding you that today’s hearing would proceed.

During the proceedings today, Mr Brosnan appeared for the Respondent. Mr Brosnan made an application pursuant to s.399A of the Act for an order to dismiss your application, on the grounds that you failed to attend a hearing held by the FWC (s399A(1)(a)).

For the Commission to consider the respondent’s s.399A application, you are required to provide reasonable grounds, if any, for your non-attendance with supporting document(s) and the information must be provided within 7 days from the date of this letter.”

[10] On 12 September 2014, Ms McKenzie sent the following email to my chambers:

“RE: Notice of Listing - U2014/5823 - McKenzie v Brosnans Investigations Pty Ltd

I have just received this notice today as we have intermittent access to the internet.

It is impossible to participate in a FW hearing here in Perth. Firstly I am in Roleystone - one hours drive from the city - without access to a vehicle, secondly none of my witnesses or witness statements are here in WA.

I requested a suspension of the hearing until I return to NSW. That could be as early as November this year. Please do not set another date until I notify the court of my Father's health. This is a very stressful and important family time and the FW hearing pales in comparison to it - as I outlined in my last correspondence it is a very low priority in my life at this point.”

[11] It is obvious that the email set out immediately above does not satisfactorily address the terms of the Commission’s letter of 11 September 2014. No further contact has been made by Ms McKenzie.

[12] Section 399A of the 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 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.”

[13] In all of the circumstances, I believe that Ms McKenzie has been provided with every reasonable opportunity to pursue her claim, if she genuinely wished to do so. She has provided absolutely no evidence in support of her contentions about inability to attend proceedings by video link from Perth. In the absence of action by Ms McKenzie in pursuit of her claim, I find that it should be struck out. Ms McKenzie’s application for relief pursuant to s.394 of the Act is therefore dismissed.

[14] An order reflecting this decision is in PR555855.

COMMISSIONER

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