Jennifer Little v Treasure Island Auctions

[2022] FWC 3149

[2022] FWC 3149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jennifer Little
v

Treasure Island Auctions

(U2022/9342)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 28 NOVEMBER 2022

Application for an unfair dismissal remedy - application dismissed

1. This decision relates to an unfair dismissal application lodged by Ms Jennifer Little pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Treasure Island Auctions.

1. The matter was listed for a directions hearing, by telephone, on 17 November 2022. There was no appearance by or on behalf of Ms Little or Treasure Island Auctions.

1. At the commencement of the directions hearing, my Associate attempted to telephone Ms Little about the matter and as the call was not answered, a voicemail message requesting a return call was left.  A further telephone call was made shortly thereafter, again, the call was not answered and a voicemail message requesting a return call was left. Later that day Ms Little returned my Associate’s telephone call, my Associate explained that the directions hearing had been stood over until 22 November 2022 as there had been no appearance by either party. My Associate further explained to Ms Little that it was important that she appear at the next directions hearing and that the details had been sent to her email address. Ms Little informed my Associate that she would dial into the next directions hearing.

1. Also at the commencement of the directions hearing, my Associate attempted to telephone to Ms Roberta O’Leary, the listed contact for Treasure Island Auctions about the matter and as the call was not answered, a voicemail message requesting a return call was left.  A further telephone call was made shortly thereafter, again, the call was not answered and a voicemail message requesting a return call was left. Ms O’Leary has not returned these telephone calls.

1. Following the directions hearing, an email in the following terms was sent from my Chambers to the parties:

   “Dear Ms Little and Ms O’Leary

   I refer to the directions hearing, by telephone, in this matter before Deputy President Saunders at 4pm today.

   There was no appearance by or on behalf of either party at the directions hearing.

   The Deputy President has listed the matter for a further directions hearing, by telephone, at 11am on Tuesday, 22 November 2022.

   Ms Little, it is very important that you attend the hearing, by telephone, at 11am on Tuesday, 22 November 2022 if you wish to pursue your unfair dismissal application against the respondent. If you do not make an appearance at the directions hearing or contact us before then, your application may be dismissed without further notice to you.

   Please do not hesitate to contact me if you would like to discuss this matter.”

2. On 22 November 2022, a further directions hearing was held. Again, there was no appearance by or on behalf of Ms Little or Treasure Island Auctions.

1. At the commencement of the directions hearing my Associate attempted to telephone Ms Little and Ms O’Leary about the matter and as each call was not answered, a voicemail message requesting a return call was left. Ms O’Leary has not responded to this message.

1. Following the directions hearing, an email in the following terms was sent from my Chambers to the parties:

“Dear Ms Little and Ms O’Leary

I refer to the second directions hearing in this matter held at 11am this morning, by telephone, before Deputy President Saunders.

There was no appearance by or on behalf of either party at the directions hearing.

We have also been attempting to contact both parties by telephone to which no response has been received.

Ms Little, please inform the Commission, by email or telephone, as soon as possible but by no later than 4pm on Thursday, 24 November 2022 if you wish to pursue your unfair dismissal application against the respondent. If we do not hear from you by 4pm on Thursday, 24 November 2022, your application may be dismissed without further notice to you.

Alternatively, if wish to discontinue your unfair dismissal application against the respondent, please inform us as soon as possible.

Please do not hesitate to contact me if you would like to discuss this matter.”

1. Later that day Ms Little returned my Associate’s telephone call, my Associate explained that there had again been no appearance by either party at the directions hearing. My Associate further explained to Ms Little that an email had been sent to her requesting that she advise the Commission if she intends to pursue her application against Treasure Island Auctions and that if she did not inform the Commission of that by Thursday, 24 November 2022, her application was at risk of being dismissed. Ms Little informed my Associate that she would review the email and respond that night. There has been no email communication or further telephone calls from Ms Little in relation to the matter.

1. In light of Ms Little’s failure to appear at the directions hearing on 18 and 22 November 2022, together with the absence of any communication from Ms Little demonstrating that she wishes to pursue the matter, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss Ms Little’s unfair dismissal application against the Treasure Island Auctions in these proceedings. The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR748367>