Jennifer Culbertson v Coles Supermarkets Australia Pty Ltd T/A Coles

[2018] FWC 3181

[2018] FWC 3181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Culbertson
v
Coles Supermarkets Australia Pty Ltd T/A Coles
(U2018/1572)

COMMISSIONER PLATT ADELAIDE, 4 JUNE 2018

Application for an unfair dismissal remedy – failure to participate in proceedings – s.399A application – application dismissed.

Summary

[1] This decision deals with an application by the Coles Supermarkets Australia Pty Ltd T/A Coles (Coles), pursuant to s.399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application lodged by Ms Jennifer Culbertson on 16 February 2018.

[2] Ms Culbertson’s application was made by the Shop Distributive and Allied Employees Association (SDA) on her behalf.

[3] The application was listed for Conciliation by the Commission on 14 March 2018 but was cancelled on the basis that Ms Culbertson, or her Representative, advised the Commission that the matter had settled.

[4] The settlement process did not complete and the matter was allocated to my Chambers.

[5] A Directions conference was held on 16 May 2018. Mr Cagney, industrial officer of the SDA, appeared on behalf of Ms Culbertson and Mr Shane Nicholson appeared on behalf of Coles. Mr Cagney advised me that he had not been able to contact his client and did not have instructions. I advised the parties that it appeared that the application had been made out of time and that issue would be determined at an extension of time Hearing on 31 May 2018.

[6] On 16 May 2017, the parties were sent a notice by post and email, that the extension of time issue was listed for a Hearing by telephone at 2:00pm on 31 May 2018 and provided information about the matters that would be considered by the Commission. Ms Culbertson was advised that any statement, submission or document was to be provided by 24 May 2018, and in respect of the Respondent, by 29 May 2018. In addition my Associate telephoned Ms Culbertson and advised her verbally of the information contained in the notice.

[7] On 23 May 2019 Mr Cagney filed a Form F53 Notice of Ceasing to Act.

[8] On 25 May 2018, the Mr Nicholson contacted Chambers to advise that he had been in communication with Ms Culbertson by telephone and had obtained an email address at which Ms Culbertson could be contacted.

[9] On 29 May 2018 a reminder notice in respect to the filing of material was provided to Ms Culbertson by email.

[10] Ms Culbertson did not file any material by that date.

[11] On 25 May 2018 Coles lodged an application pursuant to s.399A to dismiss the application on the basis that Ms Culbertson had failed to attend a Directions conference on 16 May 2018 and failed to comply with the Commission’s Directions issued on 16 May 2018 to file material in support of her case. This application was served upon Ms Culbertson by email.

[12] On 30 May 2018 Ms Culbertson contacted my Chambers and my Associate explained the effect of the Direction issued on 16 May 2018.

[13] On 31 May 2016 Ms Culbertson sent an email to Chambers which went to the merits of the matter and did not address the jurisdictional issue.

[1] Ms Culbertson did not attend the Hearing at 2:00pm on 31 May 2018. My Associate was unable to contact Ms Culbertson by telephone or email. At 2:05pm the matter proceeded in the absence of Ms Culbertson. Mr Nicholson asked me to dismiss the matter as a result of the failure to attend by Ms Culbertson.

[2] Section 399A states:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the Applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

Conclusion

[3] The Commission’s communications were directed to Ms Culbertson using the contact details provided within her application, verbally by telephone and to an email address subsequently provided. Ms Culbertson’s email of 31 May 2018 indicates she was receiving emails to the address used.

[4] I did not regard Ms Culbertson’s failure to attend the Directions conference on 16 May 2018 as a breach, as at that time Mr Cagney was her representative.

[5] The failure of Ms Culbertson to respond to the Directions and attend the Hearing on 31 May 2018 satisfies the requirements of s.399A(1)(a) and (b) of the Act.

[6] In my view, Ms Culbertson’s conduct is unreasonable and she has failed to prosecute her application after it was lodged.

[7] Ms Culbertson’s application is dismissed pursuant to s.399A of the Act. An Order¹ to this effect will be issued.

COMMISSIONER

Appearances:

No appearance of Ms Culbertson.

Mr S Nicholson on behalf of the Respondent.

Hearing details:

2018.

Adelaide:

31 May.

Printed by authority of the Commonwealth Government Printer

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1 PR607717.