Emily Dona Kate Clark v Gittoes Sales Pty Ltd

[2023] FWC 567

[2023] FWC 567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emily Dona Kate Clark
v

Gittoes Sales Pty Ltd

(U2022/12254)

DEPUTY PRESIDENT EASTON SYDNEY, 8 MARCH 2023

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.

1. On 23 December 2022 Ms Clark made an application for the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (“FW Act”) for a remedy, alleging she had been unfairly dismissed from her employment.

1. Directions were issued on 24 January 2023 to prepare the matter for hearing.

1. Ms Clark was due to file her evidence and submissions on 10 February 2023 but did not do so.

1. An email was sent to Ms Clark on 13 February 2023 requesting that she provide an update on when her materials will be filed with the Commission and inviting Ms Clark to apply for an extension of time if required. Ms Clark did not respond to this email.

1. On 15 February 2023 a further follow up email was sent to Ms Clark requesting that she provide a response to the email dated 13 February 2023 and that if she no longer wished to pursue the matter, to advise the Commission by filing a Form F50 or by return email. An SMS was also sent to the mobile number she provided on her Form F2 application advising that an important email had been sent to her email address. Ms Clark did not respond to this email.

1. In fact Ms Clark has not responded to any of the attempts by the Commission to contact her.

1. Given Ms Clark’s default and her apparent refusal to advise the Commission of her intentions, a telephone directions hearing was listed on 27 February 2023. A Notice of Listing and SMS was sent to Ms Clark advising her of the listing.

1. Mr Stephen Gittoes appeared on behalf of Gittoes Sales Pty Ltd (Gittoes). Ms Clark did not appear and was unable to be contacted for the telephone directions hearing.

1. Mr Gittoes applied for the matter to be dismissed at the telephone directions hearing however was invited to make an application for the matter to be dismissed under s.399A of the FW Act using the Form F1.

1. On the same day, Gittoes filed an application for the matter to be dismissed pursuant to s.399A of the FW Act.

1. Directions were issued on 28 February 2023 requiring Ms Clark to file with the Commission and serve on Gittoes any submissions she wished to make to address the s.399A dismissal application by 7 March 2023.

1. Ms Clark did not file any material by 7 March 2023 or at all.

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.

…

(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.”

1. The relevant principles to consider Gittoes’ application under s,399A were helpfully summarised in Lockyear v Graeme Cox[2021] FWCFB 875 (Lockyear) at [57]:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. In the s.399A application there are no facts in dispute that require the Commission to conduct a hearing to determine Gittoes’ application (per s.397).

1. Section 399A(2) is obviously satisfied by Gittoes’ application. Similarly, s.399A(1)(b) is satisfied by Ms Clark’s failure to comply with directions referred to above. The jurisdictional pre-requisites are met for Ms Clark’s application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercises cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

1. Numerous attempts have been made to contact Ms Clark. Ms Clark has failed to engage with the application, has shown no willingness to prosecute her case and has taken no steps to do so.

1. I note with frustration that considerable resources have been wasted chasing Ms Clark because Ms Clark did not even afford the Commission or Gittoes the courtesy of a response to the numerous communications sent since December 2022.

1. In these circumstances, I see no utility in allowing Ms Clark’s claim to continue and I therefore grant Gittoes’ application under s.399A.

1. An order given effect to this decision will be issued separately.[1]

DEPUTY PRESIDENT

[1] PR760125.

Printed by authority of the Commonwealth Government Printer

<PR760124>