[2017] FWC 3743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerry Hannemann
v
Millennium Services Group Ltd
(U2016/12510)

COMMISSIONER PLATT

ADELAIDE, 17 JULY 2017

Application for relief from unfair dismissal – failure to participate in proceedings – s.399A application – application dismissed.

[1] This decision deals with an application by Millennium Services Group Ltd (Millennium), pursuant to s.399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application lodged by Ms Kerry Hannemann on 13 October 2016.

[2] Ms Hannemann was originally represented by the Working Womens Centre who filed a F54 notice that they were ceasing to act on 6 December 2016.

[3] A conciliation conference was listed for 7 December 2016 but did not proceed owing to the absence of Ms Hannemann.

[4] A further conciliation conference was listed by Deputy President Bartel for 19 January 2017 but Millennium’s representative was not able to attend. I am not aware if Ms Hannemann attended.

[5] The matter was listed for a directions conference by Deputy President Bartel on 6 February 2017 where the matter was listed for hearing on 21 March 2017 with Ms Hannemann to provide materials by 24 February 2017.

[6] On 27 February 2017, Deputy President Bartel’s Chambers contacted Ms Hannemann in relation to her failure to comply with the directions and was advised that Ms Hannemann had been ill but would review the directions and contact the Commission in relation to the documents to be filed. Ms Hannemann contacted the Commission on 28 February 2017.

[7] On 3 March 2017, Deputy President Bartel listed the matter for a non-compliance Conference. Ms Hannemann confirmed receipt of the notice of listing. On 3 March 2017, Deputy President Bartel issued amended directions for a hearing on 31 March 2017.

[8] On 7 March 2017, Ms Hannemann wrote to Deputy President Bartel’s Chambers responding to the directions and advising that she would attend the hearing on 31 March 2017.
[9] On 23 March 2017, Millennium filed its material.

[10] The hearing scheduled for 31 March 2017 did not proceed as a result of Millennium’s representative not being able to travel as a result of a severe weather event in Brisbane (Cyclone Debbie).

[11] The hearing was scheduled for 10 April 2017.

[12] Ms Hannemann did not attend the hearing 10 April 2017. The Commission was subsequently advised this was due to a medical condition. Ms Hannemann provided a medical certificate and the matter was re-listed before Deputy President Bartel for directions on 9 May 2017.

[13] Owing to Deputy President Bartel’s pending retirement, the matter was allocated to me on 11 May 2017.

[14] A directions conference was conducted on 22 May 2017. Ms Hannemann appeared via telephone and the matter was listed for determinative conference on 10 July 2017.

[15] Ms Hannemann did not appear on 10 July 2017 and could not be contacted by telephone. Millennium made an application pursuant to s.399A of the Act that the matter should be dismissed as a result of Ms Hannemann’s failure to attend and comply with directions.

[16] The application was adjourned until 10:00am on 17 July 2017 to allow Ms Hannemann an opportunity to respond. Ms Hannemann was advised of the adjournment by express post.

[17] On 18 July 2017, Ms Hannemann failed to appear, despite telephone follow up by my Associate.

[18] Section 399A of the Act states:

“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

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.”

Findings

[19] The Commission’s communications were directed to Ms Hannemann using the contact details provided within her application in a method that had been successfully used previously. It is clear to me that the failure of Ms Hannemann to respond to the directions and attend the hearing on 10 or 17 July 2017 satisfies the requirements of s.399A(1)(a) and (b) of the Act.

[20] In my view Ms Hannemann’s conduct is unreasonable. In short, she has failed to prosecute her application.

[21] Ms Hannemann’s application is dismissed pursuant to s.399A of the Act. An Order¹ to this effect will be issued.

COMMISSIONER

Appearances:

Ms A.Brooks on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

17 July.

1 PR594603

Printed by authority of the Commonwealth Government Printer

In the case of Kerry Hannemann v Millennium Services Group Ltd, the Fair Work Commission was asked to consider an application for relief from an unfair dismissal. The applicant, Mr. Hannemann, sought relief under section 399A of the Fair Work Act 2009, arguing that his employer, Millennium Services Group Ltd, had failed to participate in the proceedings. The dispute arose from the termination of Mr. Hannemann's employment by the respondent company. The central issue before the Commission was whether the respondent's conduct constituted a failure to participate in the proceedings, which would entitle the applicant to relief under the specified section of the Act.

The Commission examined the actions and communications of the respondent during the course of the proceedings to determine if there was a failure to participate. It was necessary to assess whether the respondent's actions were in line with the procedural fairness and engagement expected in such proceedings. The respondent's submissions and the overall conduct during the hearing were thoroughly reviewed to ascertain whether they amounted to a failure to participate. Ultimately, the Commission found that the respondent had engaged appropriately in the proceedings, despite any shortcomings or errors in the application process by the applicant.

Consequently, the Commission dismissed the application for relief from unfair dismissal. The reasoning was based on the finding that the respondent had not failed to participate in the required manner. The Commission held that the respondent's actions were adequate for the purposes of the proceedings, and thus, the applicant was not entitled to relief under section 399A. The dismissal of the application was a direct result of this determination, as the applicant's primary contention regarding the respondent's failure to participate was not substantiated by the evidence.

Kerry Hannemann v Millennium Services Group Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established