Kim Chandler v Aldi Stores Limited

[2019] FWC 6627

[2019] FWC 6627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kim Chandler
v
ALDI Stores Limited
(U2019/9019)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 23 SEPTEMBER 2019

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by ALDI Stores Limited (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for an unfair dismissal remedy made by its former employee, Ms Kim Chandler, pursuant to s 394 of the Act (Application).

Background

[2] Ms Chandler lodged her Application in the Fair Work Commission (Commission) on 14 August 2019.

[3] Ms Chandler failed to participate in a conciliation conference on 12 September 2019. The matter was then assigned to my chambers.

[4] The matter was listed for a directions hearing, by telephone, on 18 September 2019. There was no appearance by or on behalf of Ms Chandler at that directions hearing.

[5] An email in the following terms was sent to Ms Chandler after the directions hearing on 18 September 2019:

“Dear Ms Chandler

I refer to your unfair dismissal application (Application) lodged in the Fair Work Commission in relation to your employment with Aldi Stores Limited.

Your Application was listed for directions, by telephone, before Deputy President Saunders at 11am today. There was no appearance by you, or on your behalf, at the directions hearing, by telephone, this morning. I also note that you did not attend the recent conciliation conference scheduled for this matter.

Deputy President Saunders has listed your Application for further directions, by telephone, at 9am on Monday, 23 September 2019. It is important that you participate in that directions hearing. If you are not available at that time, please let me know as a matter of urgency, so an alternative time and date can be set. If we do not hear from you prior to 9am on Monday, 23 September 2019 and you do not participate in the directions hearing, by telephone, at 9am on Monday, 23 September 2019, your Application may be dismissed without further notice to you.

I attach a Notice of Listing which sets out the relevant details for you to participate in the directions hearing, by telephone, at 9am on Monday, 23 September 2019.”

[6] There was no appearance by or on behalf of Ms Chandler at the directions hearing on 23 September 2019. My Associate attempted, without success, to contact Ms Chandler at the commencement of the directions hearing on 23 September 2019.

Application for dismissal

[7] During the directions hearing on 23 September 2019, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Ms Chandler had failed to attend the conciliation on 12 September 2019, the directions hearing on 18 September 2019, and the directions hearing on 23 September 2019.

[8] Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

[9] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

[10] In light of the history of the proceedings outlined above, I am satisfied that:

•  Ms Chandler has unreasonably failed to attend a conference conducted by the Commission (on 12 September 2019) in relation to the Application;

•  Ms Chandler has unreasonably failed to attend two hearings held by the Commission (on 18 and 23 September 2019) in relation to her Application; and

•  there has been an application by the employer in accordance with s 399A(2).

[11] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Ms Chandler’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Ms P Noakes, solicitor, for the Respondent

Hearing details:

2019.

Newcastle:

23 September.

Printed by authority of the Commonwealth Government Printer

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 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]