Hayley McNally v Schultz, Sharon T/A GV Carpet Cleaning & Restoration

[2020] FWC 4969

[2020] FWC 4969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayley McNally
v
Schultz, Sharon T/A GV Carpet Cleaning & Restoration
(U2020/7958)

COMMISSIONER WILSON MELBOURNE, 16 SEPTEMBER 2020

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

[1] On 10 June 2020, Ms Hayley McNally (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) alleging she was unfairly dismissed by Sharon Schultz T/A GV Carpet Cleaning and Restoration (the Respondent).

[2] The matter was initially listed for conciliation on 9 July 2020. The listing was adjourned at the request of the Respondent and the conciliation was set down for 22 July 2020. That conciliation also did not take place due to an adjournment request from the Applicant. A further attempt to conciliate the matter could not take place due to the Respondent advising they declined to participate. Consequently, Directions were issued and the matter was listed for hearing.

[3] Directions were issued for the filing of material on 29 July 2020. The Respondent requested an extension of time to file its materials which was granted by me and Amended Directions were issued on 14 August 2020.

[4] The Respondent filed its materials on 19 August 2020 in compliance with the Amended Directions.

[5] Ms McNally was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by 4.00PM, Wednesday, 2 September 2020.

[6] On 3 September 2020, my Chambers emailed Ms McNally to follow up her overdue submissions:

“I refer to the above matter and the Amended Directions issued to you on 14 August 2020.

You were Directed to file an outline of argument(s), statement(s) of evidence and other documentary material you intended to rely on in support of your application by no later than 4.00PM yesterday.

To date nothing has been received from you by Commissioner Wilson’s Chambers.

Your application is at risk of being listed for a Non-Compliance hearing and you must urgently take steps to provide your materials.

You are directed to file your materials today, and if that cannot be done you must contact the Fair Work Commission by reply email to seek an extension. The request must be made in writing to [email protected] and must include substantial reasons as to why you require an extension to file. You will also need to indicate the additional time that you require.

While the Commission will consider any request you make, it must not be assumed by you that any request for an extension will be granted.

Any request for an extension to file must also be provided to the Respondent and Respondent representative.”

[7] An SMS reminder was also sent to Ms McNally the same day.

[8] On 4 September 2020, my Associate attempted to contact Ms McNally by telephone on two occasions to follow up her overdue submissions. A voicemail message was left on both occasions advising the application was at risk of being listed for a non-compliance hearing and to file submissions urgently. A further email was also sent to Ms McNally warning if contact was not made by 1.00PM the application would be listed for a non-compliance hearing. A further SMS reminder was also sent.

[9] Ms McNally did not comply with the Directions and the matter was listed for a non-compliance hearing before me on 8 September 2020.

[10] On 7 September 2020, my Chambers emailed parties requesting confirmation of participant details for the hearing on 8 September 2020. The Respondent provided contact details and Ms McNally did not respond.

[11] On 8 September 2020 at 10.04AM, my chambers called Ms McNally’s mobile number to commence the hearing. There was no answer and a voicemail message was left advising the hearing was ready to commence and requesting Ms McNally call Chambers urgently.

[12] A second call attempt was made to Ms McNally at 10.07AM, a second voicemail message was left with a request to call Chambers urgently.

[13] My chambers emailed Ms McNally at 10.09AM, advising the hearing was ready to commence and requesting she contact my Chambers urgently.

[14] Finally, at 10.09AM my chambers called Ms McNally’s mobile number and a voicemail message was left advising her the hearing was to commence and would proceed in her absence and that there was a risk of a s.399A application being made for her failure to attend.

[15] Ms McNally did not attend the non-compliance hearing. Sharon Schultz T/A GV Carpet Cleaning & Restoration made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[16] Following the non-compliance hearing on 8 September 2020, Ms McNally was sent email correspondence informing her of the Respondent’s s.399A application. Ms McNally was directed to file submissions and other documentary material in respect of the s.399A application by 4.00PM Tuesday, 15 September 2020. Ms McNally was advised that if she failed to comply with this direction, her application would be dismissed.

[17] Ms McNally did not file any material with the Commission.

[18] Section 399A of the Act provides as follows:

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.

[19] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[20] As Ms McNally did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[21] After considering all the material, Ms McNally’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued with this decision.

COMMISSIONER

Appearances:

No appearance for the Applicant
Ms. A. Jakovac for the Respondent

Hearing details:

2020.
Melbourne (via telephone);
8 September.

Printed by authority of the Commonwealth Government Printer

<PR722821>