Lauren Kate Camenzuli v D.W Froon & a Hrysoudis & T.J Mackintosh & J Tesoriero
[2024] FWC 1430
•31 MAY 2024
| [2024] FWC 1430 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Lauren Kate Camenzuli
v
D.W Froon & A Hrysoudis & T.J Mackintosh & J Tesoriero
(U2024/2762)
| COMMISSIONER ALLISON | MELBOURNE, 31 MAY 2024 |
Application for an unfair dismissal remedy – s.399A application to dismiss – application granted
This decision relates to an application made by D.W Froon & A Hrysoudis & T.J Mackintosh & J Tesoriero (the Employer) under s.399A of the Fair Work Act 2009 (Cth) to dismiss an application made by Ms Lauren Kate Camenzuli (Ms Camenzuli) for unfair dismissal remedy. For the reasons given below, based on the material before me, I have determined to grant the Employer’s application to dismiss Ms Camenzuli’s unfair dismissal claim.
Background
On 11 March 2024, Ms Camenzuli made an application for unfair dismissal remedy to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth), alleging she had been unfairly dismissed from her employment with the Employer. In her Form F2, Ms Camenzuli provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of the matter.
On Monday 8 April 2024, the parties attended a staff conciliation conducted by the Commission but were unable to resolve the application.
On 10 April 2024, my Chambers sent a Notice of Listing to the parties which listed the matter for Mention/Conference (conference), by video using Microsoft Teams, at 9:30AM on Tuesday 23 April 2024.
On 16 April 2024, Ms Camenzuli sent an email to Chambers requesting the conference be rescheduled. No reason was given by Ms Camenzuli for why an adjournment was required. On that same day, my Chambers called Ms Camenzuli to discuss the requirements for requesting an adjournment. Ms Camenzuli advised my Associate that she could not speak on the phone at that time as she was about to attend class, and requested that the requirements be sent to her in writing.
Later that day, my Chambers sent an email to Ms Camenzuli outlining the requirements for requesting an adjournment. The email stated that a request for an adjournment will only be considered if it is provided to my Chambers and to the other party; provides a substantial reason as to why the date should be changed; and has been made in a timely manner.
On 20 April 2024, Ms Camenzuli once again emailed my Chambers requesting an adjournment. The request was not provided to the Employer, and no reason was provided for the adjournment.
On 22 April 2024, my Chambers emailed the parties, advising that the adjournment request had not been granted and that the matter remained listed for 9:30AM on 23 April 2024.
Ms Camenzuli did not join the conference at 9:30AM on 23 April 2024 using the Microsoft Teams link provided to the parties. My Chambers made two attempts to contact Ms Camenzuli via her mobile number around the time of the conference and left a voice message asking her to confirm whether she intended to attend. No response was received and the conference proceeded in her absence.
At approximately 12:50PM on 23 April 2024, my Chambers sent a follow-up email to Ms Camenzuli. The email attached Directions for the programming of the matter which required Ms Camenzuli to file and serve her material by 5:00PM Wednesday 8 May 2024, and stated that:
Ms Camenzuli had not attended the conference;
The matter had been listed for a further conference at 3:00PM on Wednesday 1 May 2024, which Ms Camenzuli was required to attend; and
Ms Camenzuli was directed to send a reply email to Chambers outlining why she did not attend the conference by 5:00PM Wednesday 24 April 2024.
Ms Camenzuli did not provide a response to this email. On 26 April 2024, my Chambers attempted to contact Ms Camenzuli by telephone. The call was not answered and my Chambers left a voice message noting that she was required to respond via email by 5:00PM on 24 April and requesting that Ms Camenzuli call or provide an email response to Chambers as soon as possible.
Ms Camenzuli did not attend the second conference on 1 May. My Chambers attempted to contact her twice by telephone and once by email, requesting that she join the conference urgently. The email noted that if Ms Camenzuli did not attend, her application would be at risk of being dismissed.
On 2 May 2024, my Chambers emailed the Parties a Notice of Listing for a Non-Compliance Hearing on 9 May 2024. The email set out the next steps for Ms Camenzuli as follows:
“Commissioner Allison has listed your unfair dismissal application for a non-compliance hearing, by Video using Microsoft Teams, at 4:00PM (Melbourne Time) on Thursday 9 May 2024. Please see the attached Notice of Listing.
If you intend to continue your unfair dismissal application, you must do the following.
1. Comply with your obligation to file and serve your submissions and evidence under paragraph 4 of the attached Directions [the 23 April Directions], and;
2. Attend the non-compliance hearing. At the hearing, you will need to provide reasons as to why you have not attended the previous Mention/Conferences and may be required to provide sworn evidence. You will also need to make submissions and produce any relevant documentation as to why the Commissioner should not dismiss your application. For example, if you are or have been unwell, the Commission requires a medical certificate.”
On 6 May 2024, my Chambers attempted to call Ms Camenzuli again, to draw her attention to the email sent on 2 May. Ms Camenzuli once again did not answer and my Chambers left a voicemail requesting a callback.
On 8 May 2024, my Chambers attempted a further call to Ms Camenzuli. As Ms Camenzuli did not answer the call, my Chambers left a further voicemail advising that the matter was listed for non-compliance hearing at 4:00PM on 9 May and that if she did not attend, there was a significant risk of her application being dismissed. Ms Camenzuli was requested to call Chambers back or send an email to Chambers confirming her attendance.
On 9 May, Ms Camenzuli did not attend the Non-Compliance Hearing. My Chambers attempted to call her at approximately 4:01PM and 4:06PM with no success. Two voicemails were left advising Ms Camenzuli that the Non-Compliance Hearing was currently occurring and that she should notify Chambers via phone call or email if she was intending to attend.
At the Non-Compliance Hearing, the Respondent sought to have the application dismissed pursuant to s.399A and s.587 of the Fair Work Act. The Respondent provided written submissions in support of its application later that day as follows:
“The Applicant has acted unreasonably and it would appear that the Applicant has effectively abandoned her Application for the following reasons:
1. The Applicant did not attend the Mention/Conference that was listed before the Commission at 9:30 am on 23 April 2024. Further, the Applicant did not answer the Commission’s phone calls, and she did not contact the Commission to explain her non-attendance.
2. On 23 April 2024, the Commission sent written correspondence to the Applicant requesting that she provide her reasons, in writing, as to why she did not attend the Mention/Conference of 23 April. The Applicant was required to respond by 5 pm on 24 April 2024. The Applicant did not respond or at any later stage provide reasons or explanation as to why she was absent.
3. The Applicant again failed to attend a second Mention that was listed before the Commission at 3:00 pm on 1 May 2024. The Applicant again did not answer the Commission’s phone calls, and she did not contact the Commission to explain her non-attendance.
4. On 2 May 2024, the Commission again wrote to the Applicant explaining that non-compliance is a serious issue and confirmed that she was required, by 8 May 2024, to file and serve her submissions and evidence under paragraph 4 of the Directions issued on 23 April 2024.
5. On 8 May 2024, the Applicant failed to comply with the Directions by way of failing to file evidence, and she has failed to take reasonable steps to request an extension.
6. On 9 May 2024, the Applicant failed to attend the non-compliance hearing. The Applicant had not been excused.
The Applicant has been provided with multiple opportunities, including at today’s non-compliance hearing to explain why she has failed to attend the Proceedings to explain why her case should not be dismissed. However, the Applicant has not engaged, she has failed to respond and continues to be absent without being excused.
The Applicant’s non-compliance to date and failure to attend proceedings without being excused, and without explanation demonstrates that the Application is not made with serious intent. The Applicant has acted unreasonably and has failed to prosecute her case despite being afforded an opportunity to do so.
The Respondent has suffered prejudice through the Applicant’s unreasonable conduct by way of incurring legal costs, that would not have ordinarily been incurred, to address the Applicant’s non-compliance. The Respondent further submits that it will continue to unreasonably incur legal costs in defending a case, that the Applicant has seemingly abandoned.
In the alternative, the Respondent seeks to have the Application dismissed under section 587(1)(c) of the Fair Work Act 2009 on the basis that the Application has no prospects of success. The Applicant’s failure to provide evidence in support of her Application would likely give rise to a finding of no reasonable prospect of success as the Applicant has failed to put any case to meet the assertion that she has been unfairly dismissed.
For the reasons set out above, the Respondent seeks that the Commission dismiss the application either on its own initiative or on this application.”
On 10 May 2024, my Chambers sent an email to Ms Camenzuli which relevantly stated:
“You did not attend the Non-Compliance Hearing via the Microsoft Teams link provided to you. Chambers attempted to dial your mobile number twice at the listed time. You did not answer the calls and the Non-Compliance Hearing proceeded in your absence. Chambers has not received any further explanation from you for your non-attendance.
In addition to previous Mention/Conferences listed before Commissioner Allison on 23 April 2024 and 1 May 2024, this is the third time you have been absent, without explanation or being excused, from a Commission proceeding.
Application to Dismiss Your Unfair Dismissal Application
At the Non-Compliance Hearing, the Respondent made an application under s.399A of the Fair Work Act 2009 (the Act). They have also sought for your application to be dismissed pursuant to s.587(1)(c) of the Act. The Respondent’s written submissions supporting this application are in the email below.
Action Required
Commissioner Allison directs you to file with the Commission and serve on the Respondent submissions, evidence or other documentary material in support, as to why the Commission should not dismiss your application. For example, if you are or have been unwell, the Commission requires a medical certificate. This material is required by no later than 4:00PM, Tuesday 14 May 2024.
If you file material by the due date the Commission will consider your submissions and may deal with the application on the papers.
If you no longer wish to pursue your application for unfair dismissal and do not intend to address the directions above, please file a completed Form F50 - Notice of Discontinuance.
If you don’t provide your reasons by 4:00PM, Tuesday 14 May 2024 it is very likely that your case will be dismissed without further notice.”
At approximately 2:50PM on 10 May 2024, My Chambers attempted to call Ms Camenzuli to advise her of the further Directions emailed that morning. Ms Camenzuli answered the phone but advised my Chambers that she was unable to talk “right now,” put my Associate on hold and then hung up the call.
At approximately 4:45PM on 10 May 2024, the following SMS warning was also sent to Ms Camenzuli:
“Your matter U2024/2762 is at risk of being dismissed for non-compliance with Directions. Please contact Chambers urgently. DO NOT REPLY BY SMS”
To date, Ms Camenzuli has not provided any further response to the Commission.
Relevant Legislation and Case Law
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.
…
(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.”
In Lockyear v Graeme Cox[1] (Lockyear) at [57] the Full Bench found:
“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”
I have applied the reasoning of the Full Bench in coming to my decision below. I also note the Full Bench’s comments in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2] at [31]:
“[31] The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly;… This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court.’”
Consideration – Should Ms Camenzuli’s Application be Dismissed?
As noted above, the Employer has made an application under s.399A(2) by email on 9 May 2024. I have waived compliance for the s.399A application to be filed with a Form F1.
Based on the material before me, I am satisfied that Ms Camenzuli has unreasonably failed to attend two conferences and the non-compliance hearing and has also unreasonably failed to comply with directions from the Commission.
The Commission used the email address and mobile number provided by Ms Camenzuli in her Form F2 to communicate with her regarding the requirements for the progression of her unfair dismissal remedy application. It is apparent that Ms Camenzuli has received communication from the Commission on email because she attended at least the first staff conciliation conference and she corresponded via email with my Chambers regarding the Notice of Listing sent on 10 April 2024. It is also apparent that Ms Camenzuli is contactable on the mobile number she has provided as she has answered phone calls to this number twice.
Despite receiving communication from the Commission, including Notice of Listings and Directions, and despite my Chambers making multiple attempts to contact Ms Camenzuli on email and phone, Ms Camenzuli has failed to attend two conferences and a non-compliance hearing and failed to comply with directions. She has also repeatedly failed to provide any reason why she has not attended the conferences and hearing or complied with the directions.
Ms Camenzuli was served with a copy of the s.399A application on 10 May 2024 and given until 4:00PM 14 May 2024 to respond. The email sent to Ms Camenzuli on 10 May 2024 clearly stated that, “If you don’t provide your reasons by 4:00pm, Tuesday 14 May 2024, it is very likely that your case will be dismissed without further notice.” (original emphasis). On the material before me, I further consider that Ms Camenzuli has unreasonably failed to comply with my directions to respond to the s.399A application by not filing her submissions in response to the 10 May email.
The Employer is entitled to ask for finality in the matter. On the material before me, I have found that Ms Camenzuli unreasonably failed to attend two conferences and a hearing held by the Commission. In addition, I have found Ms Camenzuli unreasonably failed to comply with directions by the Commission. Accordingly, the prerequisites for the Commission to exercise its discretion under s.399A to dismiss an unfair dismissal application have been met. I am also satisfied that the processes in Lockyear have been observed. In the circumstances, I see no utility in allowing Ms Camenzuli’s claim to continue, and I therefore grant the Employer’s application under s.399A.
Ms Camenzuli’s application under s.394 is therefore dismissed.
As I have granted the Employer’s application under s.399A, there is no need to consider the Employer’s application in relation to s.587 of the Act.
COMMISSIONER
[1] [2021] FWCFB 875.
[2] [2019] FWCFB 2925
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