Julie Rigby v Weir Minerals Australia Ltd

[2017] FWC 1136

[2017] FWC 1136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Rigby
v
Weir Minerals Australia Ltd
(U2016/15364)

COMMISSIONER MCKENNA SYDNEY, 27 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 22 December 2016, Julie Rigby (“the applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy concerning her dismissal by Weir Minerals Australia Ltd (“the respondent”).

[2] The initiating process indicates that the applicant’s representative (initially) was the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (“the union”). The respondent is, with permission, represented by Corrs Chambers Westgarth (“the respondent’s solicitors”).

[3] I will outline some procedural history to the matter, before turning to an application that has been made pursuant to s.399A of the Act to dismiss the application.

Background

[4] The matter was listed for a telephone conciliation at 9.15am on 31 January 2017, to be conducted by a Commission conciliator. Correspondence on the file indicates that the Commission conciliator wrote to the parties and representatives in the following terms:

“I confirm that the conciliation listed today in the above matter did not proceed because of the unavailability of the Applicant. [Name of union representative] of the AMWU advised that the Applicant was meant to meet him at 8am but rang in to say that she was caught up in very bad traffic. He advised that he was not authorised to commence the conference without the Applicant present. The Respondent agreed to wait until 10.00am in the hope that the Applicant would make it by then to the Union office. She had not, and indeed she could not be contacted at any time on her mobile. The Conciliator left a voicemail message on her phone asking that she park the car and advise [the union representative] that she was available to be dialled in for the conference through her mobile phone. There was no further contact possible with her from the time she advised the Union that she was running late and would not make it in by 9.15am.

The Respondent has advised that they are willing to participate in another conference if one was scheduled by FWC.

If the Applicant wants this matter to proceed via a further conciliation, then she or the Union need to email me your request within two working days, together with advice of any dates or times for which you would be unavailable. I will then refer your request to the Unfair Dismissals Team in Melbourne for consideration. Any such request will be dealt with having regard to all the circumstances and, in particular, whether the non-availability of the Applicant can be satisfactorily explained.

If I do not hear from you within the next two working days I will refer the matter directly for arbitration before a Member of the Fair Work Commission (the Commission). …”
(bold and underline in original)

[5] The applicant did not reply to the Commission conciliator’s request for suitable dates. Moreover, under cover of correspondence dated 3 February 2017, indicating that the union had been unable to take further instructions from the applicant, the union lodged a Notice of Representative Ceasing to Act.

[6] As the union was no longer acting for the applicant and the applicant did not otherwise personally reply to the conciliator’s correspondence concerning scheduling a further telephone conciliation, the file was referred for arbitration and allocated to me.

[7] On 3 February 2017, I caused correspondence to be issued to the applicant and the respondent’s solicitors, relevantly issuing the directions and scheduling two proceedings, namely: (a) Directions and/or Conference by telephone on 9 February 2017; and (b) Arbitration Conference/Hearing on 29 March 2017.

[8] The applicant did not join the first Directions and/or Conference proceeding by telephone on 9 February 2017 at the listed time. As a result of contact by my Associate the applicant subsequently joined the telephone proceeding, albeit late. The applicant indicated that she wished to proceed with her application. Discussions were also held between the parties about whether the matter might potentially settle.

[9] The matter was put-over by me to 15 February 2017 for a further Conference and/or Directions by telephone, including for the purpose of allowing the applicant to, for example, seek any advice in the interim.

[10] The applicant did not join the second Conference and/or Directions by telephone on 15 February 2017 at the listed time. My Associate’s endeavour to contact the applicant was unsuccessful.

[11] The respondent’s solicitors made certain submissions involving an application that the matter should be dismissed. I did not dismiss the application that day, because it was unclear, for example, why the applicant had not appeared and whether she would file and serve materials pursuant to the directions.

[12] Given the history of matters, I caused correspondence to be sent to the applicant on 16 February 2017 which relevantly read:

“I refer to the listing at 11.00am on Wednesday, 15 February 2017.

I note there was no appearance by or on your behalf, and you otherwise could not be contacted by telephone.

Commissioner McKenna has instructed me to note that the respondent’s representative made an application pursuant to s.399A of the Fair Work Act 2009. That section provides:

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.

While the Commissioner did not dismiss the application on 15 February 2017, she has instructed me to note that the Directions issued on 3 February 2017 require the filing and service of certain materials by no later than 5.00pm on Friday, 24 February 2017. Given the procedural history to this matter, the Commissioner has instructed me to advise you to take notice that if your materials are not filed and served in accordance with the Directions, the application may be dismissed without further notice to you.”

[13] No further communication has been received from the applicant by my chambers following the non-appearance of the applicant in the proceeding that was listed on 15 February 2017. Further, no communication has been received concerning the materials that were to have been filed and served by no later than 5.00pm on 24 February 2017.

[14] In correspondence of 27 February 2017, the respondent’s solicitors again addressed dismissal of the application pursuant to s.399A of the Act. That correspondence relevantly read:

“We confirm we act for Weir Minerals Australia Ltd in respect of the above matter and refer to our client’s application pursuant to s.399A of the Fair Work Act 2009 (Cth) (FW Act) to have these proceedings dismissed.

The Applicant has not received any material in accordance with directions and, therefore, maintains its application which we consider be made both on the basis of s.399A(1)(a) and (1)(b).

We do, however, wish to advise the Commissioner that on Monday 20 February 2017 we received two emails from the Applicant. Those emails were in identical terms and purported to copy in different legal representatives. We responded to each of those emails and received a bounce back from the email addresses that were copied into the Applicant’s correspondence (hence, our comment that “purported” to copy in legal representatives). The email correspondence included an offer to settle the matter and stated that, if that offer were declined, “then documents will be filed immediately and proceedings will continue as originally anticipated on 24 February as anticipated”. We were instructed to reject the offer made.

We do not consider this correspondence alters the course of dismissing the application pursuant to s.399A of the FW Act, and we press our client’s application. Nonetheless, as it appears Ms Rigby may still be unrepresented (based on the absence of a Notice of Representative Commencing to Act and the two email addresses that were copied into each of her two pieces of identically correspondence “bouncing back”), we draw this to the Commission’s attention so as to ensure that the Commission is fully appraised of information when considering our client’s application.

I have copied Ms Rigby into this correspondence.”

Consideration

[15] The applicant:

• did not attend the initial conciliation by telephone before a Commission conciliator;



• did not reply to the Commission conciliator’s invitation to provide suitable dates for the rescheduling of a conciliation by telephone;



• did not join the Directions and/or Conference by telephone that was listed before me on 9 February 2017, until after follow-up contact by my Associate;



• did not appear in the Conference and/or Directions by telephone that was listed on 15 February 2017;



• did not contact the Commission on 15 February 2017 (or thereafter) concerning the failure to appear or be represented in the proceeding listed that day;



• did not contact the Commission concerning the correspondence of 16 February 2017 in which the applicant was advised that the application may be dismissed without further notice to her;



• has not made any type of formal or informal application seeking a variation of the directions; and



• has failed to comply with a direction concerning the filing and service of materials.

[16] So far as the respondent’s application pursuant to s.399A of the Act is concerned, the applicant relevantly:

• has failed to attend the Conference and/or Directions by telephone that was listed before me on 15 February 2017 (and attempted contact by my Associate did not - unlike the earlier proceeding on 9 February 2017 - result in the applicant joining the proceeding); and



• has failed to comply with a direction of the Commission, in that the applicant did not file or serve any materials by 5.00pm on 24 February 2017.

[17] Absent any communication to the Commission by or on behalf of the applicant, I am satisfied that the applicant has, within the meaning of s.399A(1)(a) of the Act, unreasonably failed to attend a conference conducted by the Commission and has also, within the meaning of s.399A(1)(b), failed to comply with a direction of the Commission.

[18] In all the circumstances, an order dismissing the application issues with the reasons.

[19] As a corollary, the extant directions requiring filing and service of certain materials on 17 and 24 March 2017 are vacated. A notice concerning the cancellation of the Arbitration Conference/Hearing that had been scheduled for 29 March 2017 will also separately issue.

COMMISSIONER

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