Jamie Lee Finn v Compass Group Australia

[2019] FWC 4244

[2019] FWC 4244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie - Lee Finn
v
Compass Group Australia
(U2019/1441)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 11 February 2019, Miss Jamie-Lee Finn made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Finn said she was notified her employment had been terminated by Compass Group Australia on 23 January 2019.

[2] The matter was listed for conciliation on 18 March 2019. Miss Finn advised at the commencement of the conciliation that she was unable to participate. Miss Finn requested a second attempt at conciliation be scheduled. The Respondent, Compass Group Australia (CGA) consented to the matter being listing for a second attempt at conciliation.

[3] A second conciliation was listed on 15 April 2019. The matter was not settled at conciliation and the matter was then referred for further programming.

[4] On 8 May 2019, a Notice of Listing was sent to the parties scheduling the matter for Arbitration Conference/Hearing on 15-17 July 2019. Requirements were also issued for the filing of material. Miss Finn was directed to file her material by no later than noon on Monday, 27 May 2019 and Compass Group Australia was to file its material by no later than noon on Monday, 17 June 2019.

[5] No material was received from Miss Finn by noon on 27 May 2019.

[6] On 27 May 2019 the Commission attempted to contact Miss Finn via telephone regarding her overdue material. A voicemail message was left on her primary telephone number seeking a return call. The Commission also attempted to contact Miss Finn on the secondary telephone number listed on her application. The Commission spoke to Miss Finn’s partner who advised Miss Finn’s telephone was not working. Miss Finn’s partner was advised that if Miss Finn was unable to file the submissions by the due date she would be required to seek an extension to file the material. Miss Finn’s partner was further advised that if an extension request was not sought and the material was not filed, or was filed after the due date, then the matter could be listed for a non-compliance Hearing.

[7] A further attempt to telephone Miss Finn was made on 28 May 2019 and a voicemail message was left seeking a return call. On the same day, email correspondence was also sent to Miss Finn noting that if Miss Finn did not contact the Commission by 12pm on Wednesday 29 May 2019, the matter would be listed for a non-compliance Hearing.

[8] On 29 May 2019, the Commission again attempted to contact Miss Finn on the secondary telephone number listed on her application. The Commission spoke to Miss Finn’s partner and advised that Miss Finn’s materials were overdue and warned that the matter could be listed for a non-compliance Hearing. Miss Finn’s partner was again advised that if Miss Finn was unable to file the submissions she would be required to seek an extension to file the material. Miss Finn’s partner indicated an extension request would be filed that afternoon. Email correspondence was also sent to Miss Finn on 29 May 2019 with the email noting that if Miss Finn did not contact the Commission by 10.00am on 30 May 2019, the matter would be listed for a non-compliance Hearing.

[9] On 30 May 2019, a Notice of Listing was sent to the parties via email, scheduling the matter for a non-compliance hearing at 10am the following day.

[10] The non-compliance Hearing proceeded before me on 31 May 2019. Miss Finn could not be contacted. CGA made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Miss Finn’s failure to comply with the directions of the Commission requiring her to file material. I waived compliance with the Fair Work Commission Rules 2013 and accepted CGA’s oral application.

[11] Following the non-compliance Hearing, correspondence was sent to Miss Finn via email advising her of CGA’s s.399A application. Miss Finn was directed to file submissions and other documentary material in respect of the s.399A application by no later than close of business on Friday, 7 June 2019. The correspondence also noted that if the Commission did not receive a response, Miss Finn’s application for relief from unfair dismissal may be dismissed.

[12] To date, Miss Finn has not filed any material with the Commission.

[13] 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.

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

[15] As Miss Finn did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing her application and attending the conciliation, Miss Finn has failed to actively prosecute her case and has provided no explanation to the Commission for either her continued failure to comply with the requirements directing her to file material or her failure to attend the non-compliance Hearing on 31 May 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Miss Finn’s application. This ends her unfair dismissal application.

[17] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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