Jane Glover v Rossi Recycling Pty Ltd T/A Eastern Recycling

[2019] FWC 1458

[2019] FWC 1458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jane Glover
v
Rossi Recycling Pty Ltd T/A Eastern Recycling
(U2018/10020)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 27 September 2018, Ms Jane Glover 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). Ms Glover said her employment had been terminated by Rossi Recycling Pty Ltd T/A Eastern Recycling (Eastern Recycling) on 7 September 2018.

[2] A Notice of Listing and accompanying letter was sent via post to the parties on 30 October 2018 scheduling the matter for a conciliation on 21 November 2018. Prior to the conciliation, the Commission attempted to telephone Ms Glover on 16 November 2018 but could not reach her and no voicemail message was able to be left.

[3] The conciliation on 21 November 2018 could not proceed as Ms Glover could not be contacted. Following this, the Commission emailed the parties advising that if either party wished to proceed to a further conciliation, a request was to be made within two working days.

[4] As no request was received from either party, the matter was referred for arbitration. A Notice of Listing was sent to the parties on 4 December 2018, scheduling the matter for an Arbitration Conference/Hearing on 11-13 February 2019. Directions were also issued, requiring Ms Glover to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than noon on 20 December 2018. Eastern Recycling was directed to file its reply material by no later than noon on 10 January 2019.

[5] No material was received from Ms Glover by noon on 20 December 2018.

[6] On 21 December 2018, the Commission attempted to telephone Ms Glover in relation to her outstanding material but was unable to reach her. There was no option to leave a voicemail message.

[7] On 24 December 2019, the Commission attempted a further two telephone calls to Ms Glover in relation to her outstanding material. Both attempts were unsuccessful and no voicemail messages were able to be left on either occasion.

[8] On 31 December 2018, the Commission sent correspondence to Ms Glover’s nominated email address advising that her material was overdue and warning that if she did not contact the Commission by 4 January 2019, her matter would be listed for a non-compliance hearing.

[9] The Commission successfully telephoned Ms Glover on 2 January 2019. The Commission’s records indicate that during the telephone call, Ms Glover confirmed that she wished to continue her application but that she would call back at a later time. There is no record of Ms Glover returning the Commission’s call.

[10] On 7 January 2019, the Commission sent a Notice of Listing to the parties scheduling the matter for a non-compliance hearing on 11 January 2019. The Notice of Listing was also sent to Ms Glover via express post.

[11] On 10 January 2019, Ms Glover telephoned the Commission querying the Notice of Listing sent on 7 January 2019. Ms Glover was advised of the non-compliance process and reminded to attend the non-compliance hearing scheduled for the next day.

[12] The non-compliance hearing proceeded before Commissioner Wilson on 11 January 2019. Ms Glover appeared for herself and explained to the Commissioner that she had been unwell and had misread the Notice of Listing. She further advised the Commissioner that she had an appointment with a lawyer on 21 January 2019 and sought an extension to file her material. Commissioner Wilson granted Ms Glover an extension and directed that she file her material by 31 January 2019, with Eastern Recycling directed to file its reply material by 21 February 2019. The Arbitration Conference/Hearing was also adjourned to the week commencing 25 March 2019.

[13] On 15 January 2019, in line with Commissioner Wilson’s directions, an amended Notice of Listing was sent to the parties confirming that the matter had been listed for Arbitration Conference/Hearing on 25-27 March 2019 and directing Ms Glover to file her material by no later than noon on 31 January 2019.

[14] No material was received from Ms Glover by noon on 31 January 2019.

[15] On 1 February 2019, the Commission telephoned Ms Glover to query about her outstanding material. Ms Glover advised the Commission that she was unable to afford a lawyer. In response to this and following the telephone conversation, the Commission emailed Ms Glover template documents to assist her in completing her material.

[16] On 4 February 2019, the Commission attempted to telephone Ms Glover but was unable to connect to her as the telephone line appeared to be in another call.

[17] On 5 February 2019, the Commission successfully telephoned Ms Glover, who advised that she had already sent through her material. As no material had been received, the Commission emailed Ms Glover to confirm that the correct email address for her material to be sent to was [email protected].

[18] On 6 February 2019, as nothing had been received from Ms Glover, the Commission sent email correspondence warning that if she did not contact the Commission by noon on 7 February 2019, her matter would be listed for a non-compliance hearing.

[19] A further attempt to telephone Ms Glover was made on 7 February 2019. Ms Glover could not be contacted and a voicemail message was unable to be left. Following this, a Notice of Listing was sent to the parties scheduling the matter for a non-compliance hearing on 8 February 2019.

[20] The non-compliance hearing proceeded before Deputy President Masson on 8 February 2019. Ms Glover could not be contacted. Eastern Recycling made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Glover’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Eastern Recycling’s oral application.

[21] On 11 February 2019, correspondence was sent to Ms Glover’s nominated email and postal addresses advising her of Eastern Recycling’s s.399A application. The postal correspondence was sent via express post. Ms Glover was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 18 February 2019. The correspondence also noted that if the Commission did not receive a response, Ms Glover’s application for relief from unfair dismissal would likely be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Ms Glover’s nominated postal address on 12 February 2019.

[22] On 25 February 2019, a Notice of Listing was sent to the parties cancelling the Arbitration Conference/Hearing scheduled for 25-27 March 2019.

[23] To date, Ms Glover has not filed any material with the Commission.

[24] 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.

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

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

[27] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Glover has failed to actively prosecute her case and has provided no explanation to the Commission for either her continued failure to comply with the directions or her failure to attend the non-compliance hearing on 8 February 2019, which took place over three weeks ago. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Glover’s application.

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

DEPUTY PRESIDENT

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