Jessica Kelly v Spinifex Recruiting T/A Spinifex Recruiting

[2020] FWC 276

[2020] FWC 276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Kelly
v
Spinifex Recruiting T/A Spinifex Recruiting
(U2019/11821)

DEPUTY PRESIDENT LAKE BRISBANE, 17 JANUARY 2020

Applicant for an unfair dismissal remedy – application dismissed.

[1] This decision concerns an application by Ms Jessica Kelly (the Applicant) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The Applicant commenced employment with Spinifex Recruiting T/A Spinifex Recruiting (the Respondent) on 18 February 2018. The Applicant claimed that she was unfairly dismissed on 4 October 2019.

[2] A Form F3 Employer Response was filed by the Respondent, in which the jurisdictional objection was taken that the Applicant was not dismissed. The matter was allocated to my Chambers for hearing and determination.

[3] The matter was listed for conciliation at 9:00 am on 21 November 2019. However, the conciliation could not proceed as the Applicant failed to answer her phone.

[4] On 6 December 2019, a Notice of Listing was issued to parties for a further directions conference at which the parties could determine the way forward following the failed conciliation. The conference was listed for 4:00 pm AEST on 17 December 2019.

[5] Prior to the conference at 10:41 am, my Associate sent email correspondence to the parties requesting their views on moving the conference forward to 2:00 pm. At 10:48 am, the Respondent agreed by email that the matter be brought forward. The Applicant did not respond to the request. My Associate endeavoured to contact the Applicant on her nominated phone number on three separate occasions from 11:00 am to 11:45 am to seek her views on rescheduling the conference. Despite these attempts, the Applicant did not answer. Further to this my Associate also left a voice message on each occasion, asking the Applicant to telephone my Chambers in relation to rescheduling the conference.

[6] At 12:40 pm, the Respondent’s representative emailed my Chambers asking whether the matter was to proceed at 2:00 pm or at 4:00 pm, as originally listed.

[7] At 12:47 pm, My Associate sent an email to inform the parties that the matter will proceed at 4:00pm, as we had not received the Applicant’s views on rescheduling the conference.

[8] The conference proceeded at the listed time of 4:00 pm on 17 December 2019.

[9] My Associate again attempted to contact the Applicant on three separate occasions, however, was unsuccessful. My Associate telephoned at 3:58 pm and at 4:05 pm, leaving a voice message instructing the Applicant to make herself available for the 4:00pm conference. Further to this, the Applicant was telephoned at 4:30 pm which was unsuccessful. Again, my Associate left a voice message instructing the Applicant to make herself available.

[10] At 4:33 pm on 17 December 2019, after the Applicant failed to attend the conference, I instructed my Associate to write to the parties as follows:

“Dear Parties,

I refer to the above matter.

This matter was listed for conference at 4:00pm (Brisbane time) Tuesday, 17 December 2019.

The Applicant failed to attend the conference despite being called as well as voice messages being left on numerous occasions prior to commencement. Further to this, the Applicant did not return the calls or write an email to chambers explaining her absence.

The Deputy President considers it appropriate in the circumstances to provide the Applicant till 4:00pm (Brisbane time) Tuesday, 24 December 2019 to explain her absence at today’s conference. Should no response be received from the Applicant, the Deputy President is minded to dismiss the matter in accordance with s.587 of the Fair Work Act 2009.”

[11] No response was received from the Applicant by 4:00 pm, Tuesday 24 December 2019. As at the time of writing this decision, the Applicant has failed to respond to any of the Commission’s correspondence or returned by Associate’s calls and voice messages left to her on 17 December 2019.

[12] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[13] I have concluded that in circumstances, the Applicant failed to prosecute her application and I find that pursuant to s. 587 of the Act, it has no reasonable prospects of success. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application.

[14] I dismiss the Applicant’s application pursuant to s. 587 of the Act and issue an Order to that effect.

DEPUTY PRESIDENT

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