Lauren Mills v Service Industry Skills Pty Ltd
[2024] FWC 2116
•15 AUGUST 2024
| [2024] FWC 2116 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lauren Mills
v
Service Industry Skills Pty Ltd
(U2024/6505)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 15 AUGUST 2024 |
Application for an unfair dismissal remedy - application dismissed
This decision relates to an unfair dismissal application by Ms Lauren Mills (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Service Industry Skills Pty Ltd (the Respondent) filed on 7 June 2024.
On 19 July 2024, I issued directions for the filing of material. The directions included both the date and time for the conference and a requirement that the Applicant file material by no later than 4:00pm (AEST) on 2 August 2024.
The matter was listed for a conference, by telephone, at 3:30pm on 5 August 2024. At 2:51pm my Chambers wrote to the parties indicating that due to emergent circumstances, the conference required relisting, and would now commence at 10:00am on Wednesday 7 August 2024. An Amended notice of listing issued detailing as such.
The following day on 6 August 2024, my Chambers wrote to the Applicant as follows:
“Dear Ms Mills
Directions were issued on 19 July 2024.
Paragraph [4] of the Directions required you to file your material by no later than 4:00pm 2 August 2024. At the time of writing, no materials have been filed as directed and there has been no request for an extension to file submissions. Accordingly, the Deputy President directs you to provide your material, accompanied by an explanation for your apparent failure to comply with the directions by no later than 4:00pm AEST 6 August 2024 (today).
The Deputy President will address your non-compliance during the conference tomorrow.
In the absence of any material filed by you, the matter may be determined without further reference to you. Alternatively, should the Respondent file according to s.399A of the Act, the Deputy President will be required to consider whether the matter be dismissed.”
At the commencement of the conference, my Associate contacted the Applicant on the contact number provided by the Applicant on her Form F2 and in the email confirmed by the Applicant on 5 August 2024. A voicemail message was left requiring the Applicant to answer the next call. Three further attempts to contact the Applicant on the telephone number were made and an SMS message was issued from my Chambers. An email was also issued to the Applicant’s email address instructing her to join the conference by no later than 10:30am. She failed to do so.
On 7 August 2024, the following email was sent from my Chambers to Ms Mills:
“Dear Ms Mills
I refer to the above matter.
A conference was listed before the Deputy President at 10:00am (AEST) today and you have failed to attend. The contact number provided by you on your Form F2 Application and by email on 5 August 2024 was contacted several times and a text message was issued reminding you of your obligation to attend. An email was also sent to you.
The Deputy President is considering whether your unfair dismissal application should be dismissed in accordance with s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your claim.
If you wish to proceed with your application, you must make contact with Chambers by way of email by no later than 4:00pm (AEST) on 8 July 2024 and provide the reasons for your failure to attend today’s appearance, your failure to comply with the Commissions directions to file your material (as issued in correspondence to you on 19 July 2024), your failure to respond to correspondence seeking an explanation for your failure to file material dated 6 August 2024 and your failure again to file material by 7 August 2024.
Any reason must be supported by sufficient evidence and must be copied to the Respondent. You are reminded that your material was also due to be filed by no later than 4:00pm (AEST) on 6 August 2024, following your earlier failure to comply with the directions.
In the absence of a response from you, your application may be dismissed without further notice to you.
Alternatively, if you do not wish to proceed with your application, you can reply by email that you wish to discontinue the application. You may alternatively submit a Form F50 – Notice of Discontinuance.”
No response was received from Ms Mills. The following day, an amendment to the above email was sent to the Applicant, indicating that the reference to 8 July was erroneous and providing the Applicant an extension to provide the material and the explanation for her failure to comply with the directions and her failure to attend the conference by no later than 12:00pm AEST on 9 August 2024.
At 11.57am on Friday 9 August 2024, Ms Mills responded:
“Hello,
Thank you for your email.
My apologies for my absence in proceedings this week. By way of explanation, there’s been child safety investigations and support that my son and I have been undertaking/receiving this week. I do apologise for not providing earlier notification to your office.
Attached is the requested documentation and supporting evidence. I am the only witness. I will be sure to be diligent in this matter going forwards, and I thank you for the opportunity to submit at this late date.”
The Applicant attached copies of consent orders from Family court proceedings that occurred over various times for various parenting and property matters. These include orders made 28 February 2024; 11 April 2024, 28 May 2024, 12 June 2024 and 5 July 2024. However, there was no evidence of the Applicant having to attend to other matters during the relevant periods of non-compliance with the commission’s directions, as set out in preceding paragraphs of this decision. Neither was there any evidence to support the Applicant’s somewhat vague assertions as to the reasons for non-compliance nor any explanation of how the various consent orders made prior to those relevant periods, supported such reasons.
On the same day that this response was received from the Applicant, 9 August 2024, my chambers again wrote to the Applicant and said:
“Dear Ms Mills
I note your below email has not been copied to the Respondent. Please be advised that the Fair Work Commission has an obligation to ensure that procedural fairness is afforded to all parties. As such, any correspondence sent by a party to the Commission must be copied to all parties in the matter, unless otherwise advised. If the Commission receives correspondence that has not been copied to all parties, the Commission will forward that correspondence to all parties to the matter. The Respondent has been copied in by way of service.
The Deputy President notes that you have not provided any evidence to support your reasons for your failure to follow the directions, failure to attend the conference and failure to respond to 3 separate correspondences from Chambers. The Deputy President seeks that you file reasons for each of these failures and provide supporting evidence for each of the explanations by 4:00pm AEST on 12 August 2024. This particular evidence can be provided directly to Chambers (not copied to the Respondent) and kept confidential if the evidence is of a sensitive nature.
Failure to provide the above as directed may result in the matter being dismissed, and a decision published to this effect on the Commission’s website.”
No further response was received from the Applicant either before 4:00pm on 12 August 2024 nor has there been any response as at this time.
Section 587 of the Act is as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
I am satisfied that the Applicant has unreasonably and repeatedly failed to comply with the Commission’s directions to attend the listed conference, to file her materials in accordance with three separate directions and failed to respond to correspondence from the Commission on four occasions to date. I consider that the failures were unreasonable for the following reasons:
(A)The Applicant has repeatedly failed to offer any proper or reasonable explanation for her failure to comply with the directions or her failure to attend the listed conferences.
(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress her non-compliance but has failed to do so.
My discretion to dismiss the Applicant’s unfair dismissal application under s.587 has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for her failure to comply with my directions, failure to attend a conference or failure to file materials. Further, Ms Mills has failed to respond to communications from my Chambers and failed to provide an explanation for her non-compliance. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application.
For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.587.
Pursuant to s.587, the Applicant’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
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