Juanita Garcia v Childcare Centres of Excellence T/A Childcare Centres of Excellence

[2020] FWC 3459

[2020] FWC 3459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Juanita Garcia
v
Childcare Centres of Excellence T/A Childcare Centres of Excellence
(U2020/2071)

COMMISSIONER SIMPSON BRISBANE, 2 JULY 2020

Application for an unfair dismissal remedy.

[1] On 24 February 2020, Ms Juanita Garcia made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Childcare Centres of Excellence T/A Childcare Centres of Excellence (the Respondent).

[2] The matter was allocated to me on 20 March 2020 and I listed it for a Directions Hearing by telephone on 30 March 2020. At the Directions Hearing on 30 March, the Respondent made an appearance however Ms Garcia did not appear. My Associate attempted to contact Ms Garcia on the telephone number provided by Ms Garcia however Ms Garcia did not answer.

[3] After the Directions Hearing on 30 March 2020 at 1:21pm, an email was sent to Ms Garcia from my chambers as follows:

“Dear Ms Garcia

Re: U2020/2071 - Garcia, Juanita v Childcare Centres of Excellence T/A Childcare Centres of Excellence

On Monday 30 March in the above matter you failed to attend and participate in the directions hearing by telephone.

Attempts were made to contact you on the mobile number listed on your application. The number went straight to message bank on the numerous attempts to call you. A message was left requesting that you call the chambers of Commissioner Simpson urgently.

You have made no attempt to contact the chambers of Commissioner Simpson to explain the reasons for not participating in the directions hearing.

If no explanation is received from you in writing by close of business on Monday 6 April 2020, the Commissioner may give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

The Respondent would also be at liberty to make an application that the unfair dismissal application be dismissed in accordance with s.399A of the Fair Work Act 2009.

Your response can be e-mailed to [email address redacted].”

[4] At 1:22pm 30 March, my chambers received a response from Ms Garcia providing a medical reason as to why she was not at the Hearing. The response was not copied to the Respondent. At 1:28pm my chambers wrote to Ms Garcia requesting she advise of any objection to the correspondence being forwarded to the Respondent. At 1:33pm, Ms Garcia wrote back to my chambers saying she did not consent to the reason being provided to the Respondent. At 1:37pm my chambers wrote to Ms Garcia requesting she provide a Medical Certificate to the Commission.

[5] No response was received from Ms Garcia in relation to the request for the Medical Certificate.

[6] On 15 April 2020 I sent a Notice of Listing to the parties advising the matter would be relisted for Directions on 22 April 2020.

[7] On 22 April Ms Garcia again failed to appear. At 2:02pm my Associate attempted to contact Ms Garcia on the telephone number provided and sent the following email:

Dear Ms Garcia

I refer to the above matter and Directions Hearing before Commissioner Simpson at 2:00pm today. Please see attached Notice of Listing sent to you on 15 April 2020.

I have attempted to call you on the mobile number provided in your application, but have been unsuccessful.

Please advise as soon as possible if you will be appearing at the Directions Hearing today.”

[8] At 5:23pm on 22 April the Respondent filed a s.399A application to dismiss on the basis Ms Garcia had failed to attend two Fair Work Commission hearings.

[9] At 5:44pm my chambers received an email from a person named “Lynette” from Ms Garcia’s email address, claiming to be Ms Garcia’s mother:

“Thus IS Juanita s mother. She is very sick in the hospital. She cannot leave hospital. Thank you Lynette.”

[10] On 23 April 2020 my chambers sent an email to Ms Garcia’s email address as follows:

“Dear Lynette

I refer to the above matter and your email to chambers dated 22 April 2020.

The Commissioner notes that your daughter was directed to provide evidence to support why she was unable to participate in proceedings on 30 March 2020.

It is noted your daughter did respond by email on 30 March to the Commission, but failed at that time or since that time to comply with the Commission’s request for evidence to support her claim she was unable to participate on 30 March.

The Commissioner notes that you have stated your daughter is not in a position to participate, however despite requests there has been no evidence to substantiate this claim.

The Commissioner requests if you are able, to provide evidence to the Commission as to why Ms Garcia did not participate on 30 March at the Directions Hearing, did not respond to the Commission’s request for evidence between 30 March and now, and did not appear at yesterday’s Directions Hearing on 22 April.

Please provide evidence of Ms Garcia’s incapacity to participate, as soon as possible, but by no later than 5:00pm Thursday 30 April 2020.

The Commissioner requests that you also please call chambers at your earliest convenience on [number redacted].

[11] To date, no response has been received from Ms Garcia or from her mother providing evidence of Ms Garcia’s failure to attend two directions hearings.

[12] Ms Garcia has made no attempt to contact chambers or prosecute her claim. Ms Garcia has made no attempt to provide a response to the Respondent’s application under s.399A.

[13] Section 399A of the Fair Work Act provides as follows:

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

(b) failed to discontinue the application after a settlement agreement has been concluded.

[14] I am satisfied Ms Garcia has failed on two occasions to attend a hearing held by the Commission in relation to the application. Ms Garcia has not provided evidence to support her reason for her failure to attend as requested by the Commission, despite having some two months to do so. I therefore grant the Respondent’s application under s.399A(1), and the application is dismissed.

[15] It is also noted that Ms Garcia’s failure to attend two hearings and failure to make any contact with the Commission since April 23 has resulted in a failure to prosecute her claim. I am satisfied this application could also be dismissed under s.587 as there is no reasonable prospect of success.

COMMISSIONER

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