Jonelle Cherrington v Field Cusine Pty Ltd

[2019] FWC 5765

[2019] FWC 5765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonelle Cherrington
v
Field Cusine Pty Ltd
(U2019/4585)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 23 April 2019, Ms Jonelle Cherrington 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).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Cherrington said she was notified that her employment had been terminated by Field Cusine Pty Ltd (FCPL) on 12 April 2019, and that the dismissal took effect on the same day.

[3] Also in her Form F2, Ms Cherrington named Mr Stephen Gaffney of Unfair Dismissal Experts Pty Ltd (UDE) as her representative.

[4] The matter proceeded to conciliation on 1 July 2019 but did not settle. The matter was subsequently allocated for further case management.

[5] On 8 July 2019, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 11-13 September 2019. Directions were issued requiring Ms Cherrington to file an Outline of Argument, Statement(s) of Evidence and a Document List by no later than noon on 29 July 2019, and FCPL to file its reply material by no later than noon on 19 August 2019. In addition to the Notice of Listing being sent to UDE, a copy was sent to Ms Cherrington’s nominated email address.

[6] No material was received from Ms Cherrington or her representative, Mr Gaffney, by noon on 29 July 2019.

[7] The Commission telephoned Mr Gaffney on the afternoon of 29 July 2019 to discuss Ms Cherrington’s outstanding material. Mr Gaffney advised that they would likely discontinue the matter and would email the Commission in the next day or two.

[8] On 30 July 2019, the Commission sent an email to UDE, and carbon copied Ms Cherrington, requesting advice as to when Ms Cherrington’s material was intended to be filed and warning that the matter was at risk of being listed for a non-compliance hearing.

[9] Soon after, the Commission received a Form F54 – Notice of Representative Ceasing to Act from UDE.

[10] On 31 July 2019, an attempt to telephone Ms Cherrington directly was made and a voicemail message was left urging her to contact the Commission as soon as possible and warning that her matter was at risk of being listed for a non-compliance hearing.

[11] As no contact was received from Ms Cherrington, a Notice of Listing was issued later the same day on 31 July 2019. It was sent to Ms Cherrington’s nominated email address and scheduled the matter for a non-compliance hearing at 11.00am on 2 August 2019.

[12] On 1 August 2019, the Commission received a telephone call from Ms Cherrington’s friend who advised that Ms Cherrington was in the process of searching for a lawyer. The Commission’s records indicate that Ms Cherrington’s friend was advised that Ms Cherrington was required to attend the non-compliance hearing to explain why she did not comply with the Commission’s directions. Ms Cherrington’s friend also inquired as to whether it was possible for her to attend the non-compliance hearing as Ms Cherrington’s support person. She was advised that she would be required to put such a request in writing.

[13] Later the same day on 1 August 2019, the Commission sent a SMS message to Ms Cherrington advising that the non-compliance hearing had been scheduled for the following day at 11:00AM and that she would be contacted on the telephone number nominated in her Form F2.

[14] The non-compliance hearing proceeded before Deputy President Colman on 2 August 2019. Ms Cherrington could not be contacted. FCPL made an oral application that the matter be dismissed pursuant to s.399A of the Act due to Ms Cherrington’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[15] Shortly after the conclusion of the non-compliance hearing, the Commission received a voicemail message from Ms Cherrington which stated she was busy at work and was unable to pick up the phone. Ms Cherrington requested a return call.

[16] On 6 August 2019, correspondence was sent to Ms Cherrington’s nominated email address advising her of FCPL’s s.399A application. Ms Cherrington was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 13 August 2019. The correspondence warned that if the Commission did not receive a response, Ms Cherrington’s application for relief from unfair dismissal may be dismissed.

[17] The Commission attempted to return Ms Cherrington’s telephone call later on 6 August 2019 and left a voicemail message advising that the non-compliance hearing proceeded in her absence on 2 August 2019 and the correspondence sent earlier that day contained directions for her to file within seven days any submissions to support why her application should not be dismissed.

[18] As no response was received from Ms Cherrington, a Notice of Listing cancelling the Arbitration Conference/Hearing scheduled for 11-13 September 2019 was sent to the parties on 16 August 2019.

[19] To date, Ms Cherrington has not filed any material with the Commission.

[20] 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.”

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

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

[23] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Cherrington has failed to actively prosecute her case since UDE ceased to act for her. By this time, she was on notice that her material was due and her matter was at risk of being listed for a non-compliance hearing. Through the Notice of Listing sent on 31 July 2019, Ms Cherrington was on notice that there would be a non-compliance hearing. While the Commission received the telephone call from Ms Cherrington’s friend on 1 August 2019 and the requirement to attend the non-compliance hearing the next day was discussed, this conversation did not prompt either Ms Cherrington or her friend to attend. Neither did the Commission’s subsequent SMS message.

[24] Ms Cherrington may well claim she was too busy at work to attend the non-compliance hearing but she did not seek an adjournment in advance and nor did she engage with the Commission afterwards to provide an explanation to the Commission for either her continued failure to comply with the directions or her failure to attend the non-compliance hearing. Ms Cherrington was sent a letter by the Commission after the non-compliance hearing that included the warning that her unfair dismissal application was at risk of being dismissed and yet she still failed to make contact with the Commission.

[25] In all the circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Cherrington’s application. This ends her unfair dismissal application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711461>