DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Kendle Davies
v
A&M Group Pty Ltd
(U2020/3315)

DEPUTY PRESIDENT SAMS

SYDNEY, 1 JUNE 2020

Application for an unfair dismissal remedy – applicant failed to attend telephone conference – attempts made to contact applicant to no avail – submissions not filed in accordance with directions – application dismissed for want of prosecution.

[1] Ms Kendle Davies (the ‘applicant’), filed an unfair dismissal application with the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), after her employment with the respondent, A&M Group Pty Ltd, was terminated on 19 March 2020.

[2] In accordance with my usual practice, I listed the matter for telephone conference on 13 May 2020. The applicant was unable to be reached at this time, having cause for my Associate to send the following email to the applicant:

‘Dear Ms Davies,

I refer to the above matter, and refer to your non-attendance at today’s teleconference listed at 11:30am, despite Chambers attempting to contact you on multiple occasions. The Commission had set this matter down during a spike in Commission matters being lodged, and costs by the Commission were wasted due to your non-attendance.

His Honour requires an explanation by way of evidence as to your non-attendance by close of business Friday 15 May 2020. If you do not provide an explanation in writing, the matter may be closed for a failure of want of prosecution.

You are reminded that your submissions are due to be filed by 4pm 20 May 2020 (see the attached directions).

Parties are reminded that all correspondence with Chambers must copy in the other side.

Regards,

Daniel McNamara

Associate to the Hon. Deputy President P Sams AM’

[3] Despite attempts to have the applicant provide some written advice about this matter, or file a Notice of Discontinuance, she has not done so, nor has she filed her submissions in accordance with the directions issued on 29 April 2020. Therefore, pursuant to s 587 of the Act, the application is dismissed for want of prosecution. I so order.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Kendle Davies, filed an application seeking a remedy for unfair dismissal against the respondent, A&M Group Pty Ltd. The application was heard and dismissed by the Federal Circuit and Family Court of Australia, with the matter being overseen by Judge Murphy. The applicant did not attend a scheduled telephone conference, despite multiple attempts by the Court to contact them. Furthermore, the applicant failed to file their submissions in line with the directions provided by the Court. These actions led to the application being dismissed for want of prosecution.

The primary legal issue the Court had to address was whether the applicant's failure to attend the telephone conference and adhere to the Court's directions constituted sufficient grounds to dismiss the application. The Court considered the procedural rules and the importance of compliance with the Court's directions in determining the appropriate course of action. It was noted that the applicant had been given multiple opportunities to rectify their non-compliance, but had failed to do so.

Judge Murphy concluded that the applicant's non-attendance at the scheduled telephone conference and failure to file submissions in accordance with the Court's directions were significant procedural shortcomings. The Court found that these actions demonstrated a lack of seriousness on the part of the applicant, and that the application should be dismissed for want of prosecution. The Court emphasised the importance of adhering to procedural requirements and the need for parties to demonstrate a commitment to the resolution of their dispute.

The Court dismissed the application for unfair dismissal remedy brought by Kendle Davies against A&M Group Pty Ltd. The dismissal was a result of the applicant's failure to attend the scheduled telephone conference and their non-compliance with the Court's directions. This decision serves as a reminder of the importance of adhering to procedural requirements and the consequences of failing to do so in legal proceedings.

Kendle Davies v A&M Group Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established