Hannah Yates v Horan Hotel Management - [2022] FWC 936

[2022] FWC 936

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hannah Yates
v

Horan Hotel Management

(U2022/577)

DEPUTY PRESIDENT MOLTONI

BRISBANE, 27 APRIL 2022

Application for an unfair dismissal remedy – application dismissed for want of prosecution by the Applicant

The Applicant in this matter, Hannah Yates (Applicant) lodged an application under s.394 of the Fair Work Act 2009 (Act) on 10 January 2022 alleging that she had been unfairly dismissed by Horan Hotel Management (Respondent) on 6 January 2022.

The Fair Work Commission (Commission) made attempts to contact the Applicant by phone and by email using the Applicant’s nominated contact details on 11 January 2022, 24 January 2022, and 27 January 2022 in relation to incomplete details on her application.

On 28 January 2022, the matter was listed for staff conciliation to occur on 24 March 2022.

The Respondent filed a response to the claim on 28 February 2022 and raised a Jurisdictional Objection on the grounds that the Applicant was not dismissed.

The Commission made multiple attempts to contact the Applicant by phone and by email to confirm her attendance for the listed staff conciliation. It was brought to the Commission’s attention that the Applicant had moved overseas. The Applicant was uncontactable and unable to participate in a conciliation conference with a staff conciliator of the Commission. The matter was referred to my chambers for consideration.

On 30 March 2022, my Chambers sent email correspondence to the parties, notifying the parties that the matter had been allocated to my Chambers and directing the Applicant to contact my Chambers within 3 days to confirm whether she wished to proceed with the Application, in the following terms:

“I refer to the abovementioned matter which has been allocated to Deputy President Moltoni.

All further correspondence directed to the Fair Work Commission (the Commission) in respect of this matter is to be sent to Deputy President Moltoni’s chambers at the contact details below. The parties are reminded that all correspondence with chambers is to be copied to the other parties in this matter to maintain transparency.

The Deputy President notes that the Applicant may currently reside overseas and has been unresponsive to the multiple attempts to contact her on her nominated contact details following lodgement of this matter. It is further noted that the Applicant has failed to participate in the conciliation listed on 24 March 2022.

The Deputy President directs the Applicant to contact Chambers within 3 days, using the details below, to confirm whether she wishes to proceed with the application.

If the Applicant no longer wishes to pursue the application, please file the attached Form F50 as soon as possible so as to avoid unnecessary costs for the parties.

Please contact Chambers should there be any queries in relation to this matter.”

No response was received from the Applicant.

On 4 April 2022, my Chambers unsuccessfully attempted to contact the Applicant by phone. Accordingly, my Chambers sent email correspondence to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 936
Decision Date: 27 APRIL 2022

CaseChat Overview and Summary

In this matter, Hannah Yates lodged an application against Horan Hotel Management, alleging she was unfairly dismissed. The Fair Work Commission attempted to contact Ms Yates to address incomplete details on her application but was unsuccessful. After multiple attempts to contact her, the Commission dismissed the application for want of prosecution. The Deputy President considered the lack of effort by the Applicant to prosecute the application despite the Commission's approaches, ultimately determining that the application should be dismissed.

The primary legal issue was whether the Deputy President should dismiss the application for want of prosecution. This involved considering the statutory provisions, relevant case law, and the Applicant's conduct in pursuing the application. The Deputy President examined the statutory power to dismiss an application under s.587 of the Fair Work Act 2009 and relevant case law, including Sayer v Melsteel and Peter Viavattene v Health Care Australia.

The Deputy President found that the Applicant had not evinced sufficient effort to continue to pursue the application. The Applicant had not responded to the Commission's attempts to contact her, despite multiple opportunities to provide further details or confirm her intention to proceed. The Deputy President noted that the employer had provided a response to the Applicant's claims, indicating a defence against the claims. The Full Bench in Peter Viavattene v Health Care Australia suggested there is no requirement for the Commission to persevere with an application where the applicant's conduct demonstrates an unwillingness to participate in proceedings. Given the Applicant's persistent failure to prosecute the claim, the Deputy President exercised their discretion to dismiss the application.

The final orders of the court dismissed the Applicant's application for an unfair dismissal remedy for want of prosecution.

Orders