Justice Conway v Tag Primary Holdings Pty Ltd
[2024] FWC 764
•25 MARCH 2024
| [2024] FWC 764 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Justice Conway
v
Tag Primary Holdings Pty Ltd
(U2024/798)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 25 MARCH 2024 |
Application under s 399A - failure to attend a mention or comply with a direction - s 399A application granted.
This decision concerns an application made under s 399A of the Fair Work Act 2009 (Cth) (Act) by Tag Primary Holdings Pty Ltd (respondent) to dismiss an unfair dismissal application brought against it by Ms Justice Conway.
For the reasons that follow, the respondent’s application under s 399A is granted. Ms Conway’s application for an unfair dismissal remedy is therefore dismissed.
Procedural context
On 24 January 2024, Ms Conway made an application for an unfair dismissal remedy pursuant to s 394 of the Act. Ms Conway alleges that she was unfairly dismissed by the respondent.
On 1 February 2024, the respondent filed its Form F3 response to Ms Conway’s application. The respondent denies that Ms Conway was dismissed, and instead contends that she abandoned her employment.
On 30 January 2024, the Commission issued a notice of listing to Ms Conway and the respondent which notified the parties that the application would proceed to a conciliation conference on 27 February 2024. Ms Conway did not attend the conciliation conference and did not respond to attempts made by Commission staff to contact her by telephone. Accordingly, the conciliation conference did not proceed.
Later on 27 February 2024, Ms Conway emailed the Commission advising that she did not attend the conciliation conference because she was attending job interviews with prospective employers.
On 7 March 2024, Ms Conway sent a further email to the Commission reiterating her reasons for not attending the conciliation conference, and enquiring as to the status of her application and whether any outstanding action was required of her.
Later that day, my Chambers sent to the parties a notice of listing for a Mention to proceed by video link on 12 March 2024. The notice of listing confirmed the time, date and method of the Mention, and provided a link for the purposes of connecting the parties to the proceeding.
Prior to the Mention commencing, my Chambers attempted to contact Ms Conway five times on her nominated telephone number and two voicemail messages were left requesting her to urgently contact Chambers. However, each call was unanswered and Ms Conway did not attend the Mention. The link provided was effective in joining the respondent to the Mention.
During the Mention, the respondent made an application to dismiss Ms Conway’s application for an unfair dismissal remedy, having regard to Ms Conway’s non-attendance at the Mention. I took this to be an application pursuant to s 399A of the Act (s 399A Application).
I waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application made by the respondent.
Following the Mention, my Chambers sent correspondence by email to Ms Conway that noted her non-attendance and the attempts made to contact her. The email explained that the respondent had made a s 399A Application and provided the following directions for the determination of that issue:
The applicant is now being given an opportunity to respond to the s 399A Application.
Deputy President Millhouse directs the applicant to file with the Commission and serve on the respondent an explanation as to why the Commission should not dismiss the unfair dismissal application in light of the applicant’s failure to attend the Mention before the Deputy President today.
The applicant must file and serve evidence or other material to support her reasons. For example, if the applicant is, or has been unwell the Commission requires medical evidence. This material is required by close of business on Monday 18 March 2024.
If the applicant fails to provide a response to the s 399A Application, the Deputy President may proceed to determine the s 399A Application on the material before the Commission. This may result in the dismissal of the applicant’s claim for an unfair dismissal remedy.
If the applicant files materials, the respondent will be given the opportunity to submit any materials in reply by Wednesday 20 March 2024.
Ms Conway did not file any material in response to the s 399A Application, and has not otherwise engaged with the Commission in relation to her application for an unfair dismissal remedy.
Consideration
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.
Section 399A of the Act was the subject of consideration by a Full Bench of the Commission in Lockyear v Cox[1] where it was relevantly said as follows:
[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
Ms Conway was appropriately informed of the s 399A Application the day it was made by the respondent and has been given an adequate opportunity to respond to it. The correspondence to Ms Conway made clear that the Commission would proceed to determine the s 399A Application in the absence of any response from her. I am satisfied that the first three steps set out in Lockyear v Cox have been met. I turn now to consider the s 399A Application.
Ms Conway has not filed a response to the s 399A Application. I therefore conclude that Ms Conway has not provided a reasonable explanation for her non-attendance at the Mention on 12 March 2024. I am satisfied, for the purposes of s 399A(1)(a) of the Act, that Ms Conway’s failure to attend the Mention on 12 March 2024 was unreasonable.
Accordingly, I am empowered to exercise the discretion afforded pursuant to s 399A of the Act to dismiss Ms Conway’s application for an unfair dismissal remedy. While such discretion is to be exercised with caution, I am satisfied that it should be exercised having regard to the following circumstances:
(a) Ms Conway has not engaged with the Commission since her email correspondence to the Commission on 7 March 2024 and did not comply with the direction to file materials in respect of the Mention;
(b) Ms Conway unreasonably failed to attend the Mention in relation to her application for an unfair dismissal remedy on 12 March 2024;
(c) the Commission has afforded Ms Conway an adequate opportunity to respond to the s 399A Application or otherwise engage with the Commission about her unfair dismissal application; and
(d) Ms Conway has been on notice of the consequences of her non-attendance since 12 March 2024.
There are no matters which weigh against the exercise of my discretion to grant the s 399A application.
Order and disposition
For the reasons given, the respondent’s application under s 399A is granted.
Ms Conway’s application for an unfair dismissal remedy is dismissed pursuant to s 399A(1) of the Act.
DEPUTY PRESIDENT
[1] [2021] FWCFB 875
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