Fe Dorosan v Cillz Real Estate

[2023] FWC 1094

[2023] FWC 1094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Fe Dorosan
v

Cillz Real Estate

(C2023/1152)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 MAY 2023

Alleged dispute about any matters arising under the modern award and the NES; [s146] – application dismissed.

1. On 6 March 2023 Ms Fe Dorosan applied for Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (Act) purportedly in accordance with the dispute resolution procedure at clause 28 of the Real Estate Industry Award (Award). Ms Dorosan makes several allegations against Cillz Real Estate (Respondent) namely allegations of bullying, unfair contractual terms and breaches of consumer law, and breaches of the code of conduct of the Real Estate Institute of Australia.

1. To facilitate the progression of the application I listed it for conference at 2:00 pm on Wednesday, 12 April 2023. On 21 March 2023 a notice of listing was sent to Ms Dorosan and Ms Pricilla Asi, the listed contact for the Respondent, to notify parties of the conference to be conducted by Microsoft Teams conference at 2:00 pm on Wednesday, 12 April 2023. Parties were requested to confirm their appearance at least 24 hours before the listing and did not.

1. On 12 April 2023 at 2:00 pm neither party had joined the conference and my associate left a voicemail with both Ms Dorosan and Ms Asi advising them that the matter had started and leaving chambers’ contact details. Further unsuccessful calls were made to the parties. At 2:07 pm my associate sent an email to the parties again including the Microsoft Teams link which was provided in the notice of listing. Ms Asi appeared for the Respondent a short time after the 2:07 pm email and my associate called Ms Dorosan again with no response, and Ms Dorosan did not attend the conference.

1. On 12 April 2023 at 2:33 pm my associate sent the following email to Ms Dorosan, copying in Ms Asi:

   Parties were sent a notice of listing with details of this conference on 21 March 2023. You did not provide appearances for the conference, attend the conference nor provide reasons as to why you were not in attendance today.

   . . .

   By 5:00pm Wednesday, 19 April 2023 you, Ms Dorosan, are to provide reasons as to why you did not attend today’s conference.

   In the absence of a response, the matter will be closed.

1. On 12 April 2023 at 8:12 pm Ms Dorosan provided an apology for not attending the conference earlier than date and gave the reasons (the details of which need not be reproduced here) for her failure to attend.

1. On 13 April 2023 Ms Dorosan was asked to provide evidence to support her above reasons by 5:00 pm Wednesday, 19 April 2023.

1. On 17 April 2023 at 11:03 am Ms Dorosan sent some material to the Commission.  Despite the material being less than satisfactory evidence I decided to re-list the matter for a conference scheduled at 10:00 am Tuesday, 9 May 2023 and notified the parties accordingly.   The parties were also required to confirm receipt of the notice of listing and appearances at least 24 hours before to the hearing.

1. On 5 May 2023 at 10:57 am Ms Asi and Mr Peter Asi confirmed their appearance at the 9 May 2023 conference. On 9 May at 9:42 am and again at 9:58 am Ms Dorosan confirmed her appearance.

1. Although Ms Asi and Mr Asi attended, Ms Dorosan did not. At 10:00 am associate sent an email to parties confirming the link to join as per the notice of listing and called Ms Dorosan without success. My associate left 2 voicemail messages for Ms Dorosan confirming the details of the conference and leaving chambers contacts and attempted a further 3 calls which were not answered.

1. I proceeded with the scheduled conference without Ms Dorosan.   During the conference I explained that I have decided to dismiss the application.  My reasons for doing so are twofold.  First, the Commission’s function under the dispute settlement term of the Award (clause 28) is limited to conciliation, mediation, or consent arbitration of the dispute.  Without Ms Dorosan’s active participation, which as a minimum includes attending conferences convened for the purpose of the application, I cannot conciliate, mediate nor arbitrate the dispute. Second, the subject matter of the dispute as described in the application does not concern a matter under the Award nor is the subject matter of the dispute as described a dispute in relation to the National Employment Standards.  The Commission therefore does not have the power to deal with the disputed subject matter in an application brought under s 739 of the Act.

1. The application is dismissed. Other remedies might be available to Ms Dorosan in relation to the matters raised in her application, including for example the bullying allegations pursuant to other provisions of the Act.  But the application under s 739 was misconceived, and made all the more difficult by the applicant’s failure to attend conferences.   

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR761736>