Kylie Power v The Trustee for Bala Enterprises Trust

[2022] FWC 2037

[2022] FWC 2037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kylie Power
v

The Trustee for Bala Enterprises Trust

(U2022/5608)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 2 AUGUST 2022

Application for an unfair dismissal remedy

1. This decision relates to an unfair dismissal application by Ms Kylie Power pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, The Trustee for Bala Enterprises Trust which trades as Jack & Co – Taree Central.

1. The matter was listed for a directions hearing by telephone on 27 June 2022. On 22 June 2022 the applicant’s representative, Ms Dehaloo of Employee Dismissals, emailed my associate requesting that the directions hearing be rescheduled due to their unavailability. The directions hearing was rescheduled to 1 July 2022. 

1. On 1 July 2022, the respondent’s representative, Ms Radwanowski of the Australasian Convenience and Petroleum Marketers Association, informed the Commission that she would be unable to attend the directions hearing due to a delayed flight she would be on during the scheduled time. An email in following terms was sent from my chambers to both the applicant and the respondent’s representatives that same day:

“Further to the below correspondence, the directions hearing listed for 2pm today, 1 July 2022 is vacated.

The Deputy President issues the following directions:

1. By 4pm on 22 July 2022, the applicant must file and serve the witness statements, documents and submissions on which she wishes to rely in support of her application.

2. By 4pm on 12 August 2022, the respondent must file and serve the witness statements, documents and submissions on which it wishes to rely.

3. By 4pm on 19 August 2022, the applicant must file and serve any witness statements, documents and/or submissions in reply to the material filed by the respondent.

4. The matter is listed for hearing, by Microsoft Teams video conference, at 10am on 2 September 2022 (NSW time). The details as to how to join the video conference are contained in the attached Notice of Listing.

5. By 4pm on 31 August 2022, each party must notify the other party and the Commission, in writing, as to which witnesses they intend to cross examine at the hearing.

6. At 9am on 1 September 2022 (NSW time), there will be a trial run of the video conferencing facilities.

7. If a party wishes to rely on a witness statement which has been filed and served, the party must ensure that the maker of the witness statement attends the hearing, subject to a different ruling by the Deputy President.

8. Any witness who is called to give evidence at the hearing by video conference must not have any person other than their representative present in the same room as them, and must not be in communication with any person by electronic or other means (save for the video conference connection), when they give evidence by video conference.

9. Any witness who is not a party to the proceedings will not be permitted to be present or observe the hearing until they have given evidence.

10.Each witness must have a hard copy of their witness statement(s), including annexures thereto, with them when they are called to give evidence at the hearing.

11.The affirmation will be administered to each witness who gives evidence in the proceedings.

12.In the event that a party wishes to show a witness a document in cross examination (other than a document annexed to the witness’s witness statement filed in the proceedings), that party must email a copy of that document to the other party to the proceedings (who must provide it to their witness), and the Associate to Deputy President Saunders by 4pm on the business day prior to the hearing.

13.By 4pm on the business day prior to the hearing, each party must file and serve a list of the authorities they intend to read from, or take the Commission to, in final submissions.

14.An audio recording of the hearing will be made by the Fair Work Commission.

Parties are welcome to negotiate between themselves and if required, make a joint request for member assisted conciliation in this matter.”  

1. On 21 July 2022, the applicant’s representative filed a Form F54 informing the Commission that it has ceased to act for Ms Power.

1. Also on 21 July 2022, an email was sent from my chambers to Ms Power forwarding the 1 July 2022 email in the following terms:

“Dear Ms Power

We note that the Commission has today received notification that Employee Dismissals has ceased to act for you in this matter.

Please see the below directions issued on 1 July 2022 for your reference.”

1. The applicant did not file with the Commission any material in accordance with the first direction above. On 25 July 2022, an email in the following terms was sent from my Chambers to Ms Power:

“Dear Ms Power

I refer to the directions issued in this matter on 1 July 2022 (below).

In those directions you were directed to file with the Fair Work Commission, and serve on the Respondent, witness statements, documents and submissions you intend to rely on in support of your application in this matter by no later than 4pm on 22 July 2022. No such witness statements, documents and submissions have been filed.

The Deputy President extends the time by which you must file and serve on the Respondent, witness statements, documents and submissions you intend to rely on in support of your application in this matter to no later than 4pm on 27 July 2022.

If nothing is filed in support of your application by that time, your unfair dismissal application may be dismissed without further notice to you.

If you wish to discontinue (i.e. withdraw) your application, you may do so by stating, in an email in reply to this email, that you wish to discontinue your application.

I note that if you do not discontinue your application and the Commission dismisses your application because you have not filed any material in support of your application, a publicly available decision must be published on the Fair Work Commission website. The decision will indicate that you have failed to comply with directions issued by the Commission and that your unfair dismissal application was consequentially dismissed.”

1. On 27 July 2022 my Associate attempted to telephone to Ms Power about the matter and as the call was not answered, a voicemail message requesting a return call was left.  A further telephone call was made on 28 July 2022, again, the call was not answered and a voicemail message requesting a return call was left. Ms Power has not respondent to these messages.

1. A further email was sent from my chambers to Ms Power on 28 July 2022 as follows:

“Dear Ms Power

I refer to our previous emails to you and the voicemail messages we have left asking you to contact us.

You have not complied with the directions made in these proceedings to file and serve the material on which you wish to rely to support your unfair dismissal claim. Nor have we heard from you.

Unless we hear from you by 4pm tomorrow (29 July 2022), your unfair dismissal application will be dismissed without further notice to you.”

1. There was no response to this correspondence or any previous correspondence, nor has any material been filed by the applicant to comply with the directions.

1. In light of the applicant’s failure to comply with the directions made on 1 July 2022, together with the absence of any communication from the applicant, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss the applicant’s unfair dismissal application against the respondent in these proceedings. The application is therefore dismissed, the hearing scheduled to take place on 2 September 2022 is vacated, and the directions made on 1 July 2022 are vacated.

DEPUTY PRESIDENT

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