Lara Elizabeth Townend v Cellnet Group Ltd

[2021] FWC 6390

[2021] FWC 6390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lara Elizabeth Townend
v
Cellnet Group Ltd
(U2021/9087)

COMMISSIONER HUNT BRISBANE, 23 NOVEMBER 2021

Application for an unfair dismissal remedy - application by respondent for dismissal pursuant to s.399A of the Fair Work Act 2009.

[1] On 11 October 2021, Ms Lara Townend made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging she was dismissed from her employment with Cellnet Group Ltd (the Respondent) and that the dismissal was harsh, unjust or unreasonable.

[2] The application appeared to have been made outside of the 21 day period allowed by the Act for a s.394 application to be lodged, having been lodged 26 days after Ms Townend was dismissed. The matter was allocated to me to deal with the question of whether a further period should be allowed for the application to be made.

[3] On 4 November 2021, I held a telephone conference with the parties and following the conference I caused correspondence to be sent from my Chambers, directing the parties to file written material. Ms Townend’s materials were due to be filed on 11 November 2021. No materials have been received from Ms Townend.

[4] On 12 November 2021, the Respondent emailed my Chambers, copied to Ms Townend as follows:

“Dear Associate,

Can you please kindly confirm whether the Applicant has filed materials per the below directions. We have not been served with anything and we have tried contacting the Applicant, but without success.

The Applicant is copied in to this email.”

[5] That afternoon, my Associate made two attempts to contact Ms Townend by telephone. Both attempts were unsuccessful. My Associate left a voice message imploring Ms Townend to check her emails and contact my Chambers. My Associate’s voicemail also informed Ms Townend that I would list this matter for a non-compliance hearing on Monday, 15 November 2021, if she did not file her materials by 9am Monday morning.

[6] I then issued the following correspondence later that afternoon to the parties, granting Ms Townend an extension of time to lodge her witness statement and submissions:

“Dear Parties

Reference is made to the above matter.

Further to the below correspondence, and the Directions issued by email on 4 November 2021 (attached), the Commissioner notes that Direction 1 provided that:

1. The Applicant shall file in the Commission and serve on the Respondent a witness statement and submissions as to why a further period should be granted, by no later than 4:00pm Thursday, 11 November 2021.

To date, the Commission has not received any witness statement or submissions from the Applicant.

The Commissioner is prepared to extend the time for the Applicant to comply with the above Direction until 9:00AM (AEST) Monday, 15 November 2021.

If the Applicant does not file her witness statement and submissions by the extended deadline above, this matter will be listed for a non-compliance hearing by telephone at 12:00PM (AEST) Monday, 15 November 2021.”

[7] At 9:16AM (AEST) in the morning of Monday, 22 November 2021, I sent the following email to the parties:

“Dear Parties

Reference is made to the above matter and the emails below.

The Commission has not received any material from the Applicant which was required to be provided by 9:00AM (AEST) Monday 15 November 2021 as per the Commissioner’s Directions.

Pursuant to the email of 12 November 2021 this matter has been listed for a non-compliance hearing by telephone at 12:00PM (AEST) today. A Notice of Listing is to follow.

Can the parties please provide their contact details for the hearing ASAP?”

[8] At 12:00PM that day, my Associate attempted to dial Ms Townend, however, she did not answer the call. My Associate then emailed Ms Townend at 12:05PM (AEST) asking that she urgently contact my Chambers, advising that the Commission had tried to contact her for the non-compliance hearing.

[9] Ms Townend has not since corresponded with my Chambers, either by telephone or email.

The Respondent’s application pursuant to s.399A of the Act

[10] On 16 November 2021, the Respondent made an application pursuant to ss.399A(1)(a)-(b) of the Act that the Commission dismiss this application in its entirety. The application was served on Ms Townend by email.

[11] The Respondent set out the following grounds in its application pursuant to s.399A of the Act:

“Relevant to section 399A(1)(a), the Respondent to this application (Ms Townend) failed to appear before the Commission for a non-compliance hearing on 15 November 2021.

Relevant to section 399A(1)(b), [Ms Townend] has failed to comply with directions issued by the Commission on 4 November 2021 and as amended and re issued on 12 November 2021.

The Respondent has not responded to or answered any communications made by the Applicant (employer) or the Commission in relation to her failure to comply with the directions in this matter.”

[12] Later, on 16 November 2021, I issued the correspondence to the parties, again serving the s.399A application on Ms Townend, affording her until 18 November 2021 to respond to the s.399A application.

[13] Ms Townend has not provided any response to the Commission to the s.399A application or the above correspondence.

Relevant legislation

[14] Section 399A of the Act is a specific provision in relation to unfair dismissal applications which also provides for the dismissal of applications in circumstances where the applicant has not acted to prosecute their case. Section 399A 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

(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.”

Consideration

[15] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.¹ Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief from a beneficial statutory provision.²

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary.

[17] The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

•  is fair and just;

•  is quick, informal and avoids unnecessary technicalities;

•  is open and transparent; and

•  takes into account equity, good conscience and the substantial merits of the case.

[18] Ms Townend has:

(a) provided no response for non-compliance with the directions;

(b) has been given numerous opportunities to respond;

(c) has not responded to attempts by the Commission to contact her by email and telephone;

(d) was informed of the importance of complying with directions;

(e) failed to attend the non-compliance hearing on 15 November 2021; and

(f) failed to respond to the s.399A application.

[19] Section 381 of the Act, in guiding how the Commission deals with unfair dismissal applications, states the following:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[20] It is clear that s.381 of the Act requires a fair go to be afforded to both Ms Townend and the Respondent in these proceedings. I am satisfied that Ms Townend has been afforded a fair go. I am satisfied she has unreasonably failed to meet the directions required of her and to participate in the non-compliance hearing of 15 November 2021.

Conclusion

[21] I have concluded, on balance, that Ms Townend has both:

(a) unreasonably failed to attend a hearing held by the Commission in relation to the application; and

(b) unreasonably failed to comply with a direction of this Commission relating to the application.

[22] I am therefore persuaded I should exercise my discretion under s.399A and dismiss Ms Townend’s application.

[23] An Order PR735959 giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR735958>

1 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

2 Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].