Kate Moore v Allen's Freight

[2018] FWC 6744

[2018] FWC 6744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kate Moore
v
Allen’s Freight
(U2018/8172)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 8 August 2018, Miss Kate Moore 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). Miss Moore said her employment had been terminated by Allen’s Freight on 20 July 2018.

[2] The matter was listed for conciliation on 4 September 2018. On that day, Miss Moore requested that the conciliation be re-listed as she had worked a night shift and had forgotten about the scheduled conciliation that morning. The next day, Miss Moore emailed the Commission and confirmed she wished to have the conciliation rescheduled.

[3] On 11 September 2018, a Notice of Listing was sent to the parties advising the conciliation had been rescheduled for 19 September 2018.

[4] On 19 September 2018, the conciliation could not take place as Miss Moore could not be contacted. Consequently, directions were issued and Miss Moore was directed to file material in support of her application by no later than noon on 8 October 2018. Allen’s Freight was directed to file its material by no later than noon on 29 October 2018.

[5] On 20 September 2018, Allen’s Freight made an application pursuant to s.399A of the Act (s.399A application) that Miss Moore’s application be dismissed on the basis that she had failed to attend two conciliation conferences.

[6] On 21 September 2018, a voicemail message was left for Miss Moore seeking her return call.

[7] On 27 September and 3 October 2018, telephone discussions with Allen’s Freight’s representative took place. They were advised the Commission had issued directions which required Miss Moore to file her material by noon on 8 October 2018, and at my direction, the status of its s.399A application would be reviewed after that date.

[8] In the afternoon of 8 October 2018, a telephone call was made to Miss Moore in relation to her overdue material. Miss Moore advised she was not aware her submissions were due that day. Miss Moore advised she wished to pursue her matter and she would email a request for an extension to file her material. Miss Moore’s email address was also confirmed with her. Following the phone call, email correspondence was sent to Miss Moore confirming that a request for an extension to file submissions should be put in writing. Miss Moore was also provided with template documents to assist her in preparing her material. Miss Moore was advised if no extension request or submissions were received from her, the matter would be listed for a non-compliance hearing on 12 October 2018.

[9] In the afternoon of 9 October 2018, two further phone calls were made to Miss Moore. On the second occasion, a voicemail message was left requesting a return call as soon as possible. An SMS message was then sent to Miss Moore which sought a return call.

[10] On 10 October 2018, further email correspondence was sent to Miss Moore which confirmed no material had been received. It was again noted that if no extension request or material were received, the matter would be listed for a non-compliance hearing on 12 October 2018. Later that day, another attempt to telephone Miss Moore was made, however this was unsuccessful and a voicemail message was left seeking a return call.

[11] On 11 October 2018, a Notice of Listing was emailed to the parties confirming the scheduling of a non-compliance hearing the following day. An SMS message was also sent to Miss Moore advising the matter was listed for non-compliance hearing on 12 October 2018 and she could expect a telephone call from the Commission at the commencement of the hearing.

[12] The non-compliance hearing proceeded before me on 12 October 2018. Miss Moore could not be contacted for the hearing. Allen’s Freight made an oral application to amend its s.399A application on the basis of Miss Moore failing to comply with directions and failing to attend the non-compliance hearing. I waived compliance with the Fair Work Commission Rules 2013 and accepted Allen’s Freight’s oral application.

[13] Following the non-compliance hearing, correspondence was sent to Miss Moore’s nominated email and postal addresses advising her of Allen’s Freight’s s.399A application. Miss Moore was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 19 October 2018. This correspondence stated that if the Commission did not receive a response, Miss Moore’s application for relief from unfair dismissal would be dismissed. The letter was sent by express post which was confirmed to have been delivered to Miss Moore on 16 October 2018.

[14] To date, Miss Moore has not filed any material with the Commission.

[15] 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.

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

[17] As Miss Moore did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Moore has failed to respond to numerous attempts made by the Commission to contact her. Other than indicating on 8 October 2018 that she would file a request for an extension to file her material, Miss Moore has shown no willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with directions or her failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Miss Moore’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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