Kyara Richards v Boronia Corporation T/A Bright Sparks Early Learning Centre

[2018] FWC 7012

[2018] FWC 7012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyara Richards
v
Boronia Corporation T/A Bright Sparks Early Learning Centre
(U2018/8998)

DEPUTY PRESIDENT BINET PERTH, 15 NOVEMBER 2018

Application for an unfair dismissal remedy – failure to attend a conference – application dismissed.

[1] On 30 August 2018, Ms Kyara Richards (Ms Richards) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging she was unfairly dismissed by Boronia Corporation Pty Ltd, trading as Bright Sparks Early Learning Centre (Bright Sparks).

[2] On 22 October 2018 a Notice of Listing was issued informing the parties that the Application was listed for a conciliation conference before Deputy President Binet at 2pm on Wednesday 31 October 2018 (Conference).

[3] The Notice of Listing stated that the conference was listed to be held in person at the FWC premises in Perth.

[4] Ms Richards was not present at the listed time for the Conference commencement. My Associate contacted Ms Richards via telephone shortly after the listed start time of the Conference but Ms Richards could not be reached. My Associate left a voice message, requesting that Ms Richards return the phone call.

[5] Mr Scott Humphries (Mr Humphries), Bright Sparks’ managing director, attended the Conference in person.

[6] Due to Ms Richards’ failure to attend the conference, Bright Sparks was invited to make an application under section 399A of the FW Act to have Ms Richards’ application dismissed (Dismissal Application). Bright Sparks were given until close of business 2 November 2018 in which to make a Dismissal Application.

[7] Ms Richards was invited to make submissions providing reasons why the FWC should not dismiss her application and advised that those submissions should be accompanied by evidence or other documentary material supporting those reasons. Ms Richards was directed to file her material by close of business 7 November 2018.

[8] Section 399A of the FW Act provides:

“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.

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.”

[9] On 1 November 2018, Bright Sparks filed their application to have Ms Richards’ Application dismissed. Bright Sparks submitted that on the basis of Ms Richards’s failure to attend the conference, that the Application should be dismissed in accordance with s.399A of the FW Act.

[10] In the Dismissal Application, Bright Sparks submitted that Ms Richards’ Application should be dismissed on the basis that Ms Richards had unreasonably failed to attend a conference at the listed time, as directed by a Notice of Listing.

[11] I am satisfied that Ms Richards was, or should have been, aware of the requirement to attend the Conference in person.

[12] I note that Bright Sparks attended to participate in the Conference at the listed time, and that Ms Richards did not attend in person nor make any prior contact with Chambers to advise she would not be in attendance.

[13] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) states the FWC may exercise its discretion to dismiss an application under this provision in situations which include the following:

Where an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend” 1

[14] Notwithstanding that Ms Richards was invited to make submissions providing reasons why the FWC should not dismiss the Application by close of business 7 November 2018, no correspondence of any kind was received from Ms Richards by this date. No further correspondence has been received from Ms Richards at the time of writing this decision.

[15] The direction to attend the Conference was clear and concise. Ms Richards did not provide prior notification that she could not or would not attend the Conference. In the circumstances of this matter, I am satisfied Ms Richards has unreasonably failed to comply with a direction issued by the FWC to attend a conference conducted by the FWC.

[16] Consequently, the Application is dismissed pursuant to section 399A(1)(a) and (b) of the FW Act.

[17] An Order (PR702336) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Amendment Bill 2012 (Cth), Explanatory Memorandum, page 36.