Lauren Mines v Noni B Group T/A Miller's

[2019] FWC 2568

[2019] FWC 2568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Lauren Mines
v
Noni B Group T/A Miller's
(U2019/726)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 17 APRIL 2019

Application for an unfair dismissal remedy

[1] On 24 January 2019 Ms Lauren Mines (‘the applicant’ or Ms Mines) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) alleging that she was unfairly dismissed by her former employer Noni B Group T/A Miller's (Noni B Group or ‘the respondent employer’) on 24 January 2019.

[2] In accordance with the Commission’s regular practice the matter was referred to a Commission-appointed conciliator for conciliation by telephone. The conciliation was scheduled for 25 March 2019. The conciliation did not proceed due to the non-attendance of Ms Mines. The Commission then sent the parties a letter (to email addresses previously notified) inviting a response within two working days if they sought conciliation to be re-scheduled.

[3] By email to the conciliator dated 25 March 2019 Ms Mines advised the Commission that she had been hospitalised and was in a homeless shelter. By email dated 27 March 2019 Ms Mines advised the Commission that she cannot “take a 90 minute phone call” as she is concerned about using her phone and losing its battery charge to a prolonged call. She advised “I will only be contactable via email due to being homeless”,

[4] No conciliation was re-scheduled. Ms Mines’ application was then referred to me for hearing and determination.

[5] On 2 April 2019 I directed that a Notice of Listing be issued listing Ms Mines’ application for a directions hearing by telephone at 10.00am (ACST) Wednesday 10 April 2019. Dial-in details were provided. The Notice of Listing was sent to the parties to email addresses previously notified (and from which Ms Mines had communicated with the Commission on 25 and 27 March 2019).

[6] At 10.00am (ACST) Wednesday 10 April 2019 Ms Mines had not phoned into the directions hearing. My Associate made two telephone calls to Ms Mines on two telephone numbers provided in her application. On both occasions the calls were not answered and went to voicemail. An urgent voicemail message was left for Ms Mines on each telephone number advising that she was due to participate in a hearing at that time. Ms Mines did not respond to the voicemail.

[7] At 10.10am I commenced the directions hearing. The respondent employer was represented. There was no appearance by Ms Mines.

[8] An audio record of the directions hearing was made. I outlined the background as known to me, as set out above. I advised the hearing that:

•  I will adjourn the directions hearing to 12.00pm (ACST) Monday 15 April 2019; and

•  That I will not list Ms Mines matter for arbitration until such time as I better understand Ms Mines’ circumstances and am satisfied that Ms Mines is prosecuting her application in a manner consistent with the obligations of an applicant to the Commission. These include an obligation to comply with directions of the Commission, to participate in scheduled hearings, to respond (by email or telephone) to communications from the Commission and to promptly advise of any unavailability to comply with directions or attend hearings.

[9] On 10 April 2019, in light of the non-appearance by Ms Mines at the directions hearing earlier that day, I issued directions. A fresh Notice of Listing for 15 April was also issued.

[10] The Directions I issued were as follows:

1. That the directions hearing held at 10.10am (ACST) on 10 April 2019 be adjourned until 12.00pm (ACST) on 15 April 2019; and that Ms Mines and Noni B Group be directed to attend;

2. If Noni B Group is to file an application seeking dismissal of the matter under section 399A of the FW Act, as foreshadowed at the hearing on 10 April, it is to do so by 12.00pm (ACST) on 12 April 2019 and serve the same on Ms Mines.

3. Ms Mines is to provide to the Commission and to Noni B Group an explanation in writing (by email) for her non-attendance on 10 April 2019 by 12.00pm (ACST) on 12 April 2019;

4. That, if I am satisfied that Ms Mines is and intends to prosecute her application in a manner consistent with the obligations of an applicant to the Commission, then (subject to hearing from the parties) I will set Ms Mines’ application down for hearing and determination and issue directions related thereto.

[11] In my Directions I also observed:

“[9] The parties should also note that the Commission has power to dismiss matters of its own motion under section 587 of the FW Act if an application has no reasonable prospects of success. Ms Mines is on notice that should an applicant fail to prosecute its application it is open for the Commission to conclude that it has no reasonable prospects of success.

[12] No materials or explanations were filed by Ms Mines by 12 April 2019, or at all, as directed.

[13] On 12 April 2019, the Respondent employer submitted an application that the Commission should dismiss Ms Mines’ application under section 399A of the FW Act. The application was served on Ms Mines at her last known email address.

[14] On 15 April 2019, Ms Mines failed to phone into the adjourned directions hearing. At 12.00pm my Associate telephoned Ms Mines on the mobile phone numbers she had previously advised the Commission. The calls were not answered. It went to message-bank. A voice mail message was left for Ms Mines to urgently contact the Commission as a hearing on her application was to proceed. I commenced proceedings at 12.09pm (ACST).  The employer appeared. Ms Mines did not do so. An audio record of the directions hearing was made.

[15] I advised at the hearing on 15 April 2019 that the Commission had received the Respondent employer’s section 399A application. The Respondent employer made oral submissions in support of the grounds specified in its application. It tabled a Statutory Declaration 1 of an officer (David Pearce) to the effect that it had attempted to contact Ms Mines by phone and by email on 11 April 2019 advising that it wished to be urgently informed whether Ms Mines intended to continue the matter, and that the employer would be making an application to dismiss the unfair dismissal application if not so advised (Attachment A to NB1).

[16] The Respondent employer sent a similar email to Ms Mines on 12 April 2019 (Attachment B to NB1).

[17] The Respondent employer advised that it had received no communication from the Applicant in response to either its emails or since serving its section 399A application on 12 April. Nor has the Commission, notwithstanding my Directions of 10 April.

[18] At the conclusion of proceedings I indicated my provisional view that grounds for the dismissal of the application under section 399A had been made out but that, in view of Ms Mines’s apparent circumstances, I would provide one further opportunity for her to appear before me and explain her position and intention.

[19] I issued Further Directions on 15 April 2019 as follows:

“The employer’s application dated 12 April 2019 that Ms Mines’s application be dismissed under section 399A of the FW Act be adjourned to 9.15am Wednesday 17 April 2019.

The Commission expressed a provisional view that on the evidence and material before it, grounds for Ms Mines’s application to be dismissed under section 399A of the FW Act had been made out. However, the Commission indicated that a further opportunity would be provided to Ms Mines, in view of her apparent circumstances, to appear in these proceedings.

The parties are directed to appear at the further proceedings listed for 17 April 2019 (Notice of Listing attached).

Ms Mines is advised by the Commission that should she not appear on 17 April 2019 and present a reasonable explanation for her non-appearance on 10 and 15 April 2019 and her non-compliance with directions, her application may be dismissed at that time under section 399A of the FW Act.”

[20] A Notice of Re-Listing was again sent to Ms Mines’s last known email address.

[21] On 17 April 2019, Ms Mines failed to phone into the adjourned directions hearing. At 9.15am my Associate telephoned Ms Mines on the mobile phone numbers she had previously advised the Commission. The calls were not answered. They went to message-bank. A voice mail message was left for Ms Mines to urgently contact the Commission as a hearing on her application was to proceed. I commenced proceedings at 9.20am (ACST).  The employer appeared. Ms Mines did not do so. An audio record of the directions hearing was made.

[22] The employer submitted that the Commission should dismiss the application pursuant to section 399A of the FW Act. At the conclusion of proceedings I indicated that I would, in all the circumstances, dismiss the application and deliver written reasons in due course, which I now do.

[23] Section 399A of the FW Act provides as follows:

“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.”

[24] I am not satisfied that Ms Mines is prosecuting her application in a manner consistent with the obligations of an applicant to the Commission. This includes her failure to comply with directions of the Commission, to participate in scheduled hearings, to respond to email or telephone communications from the Commission and to promptly advise of any unavailability to comply with directions or attend hearings.

[25] I am satisfied that the Applicant has been given sufficient notice of these proceedings (including by her requested form of contact: email) and of the Respondent employer’s section 399A application. Proceedings on her application have been twice adjourned after Ms Mines’s initial failure to appear before me. Proceedings on the Respondent employer’s application have been once adjourned after Ms Mine’s failure to appear on it. I am further satisfied that it is appropriate to now determine the Respondent employer’s application.

[26] In these circumstances, I am persuaded that I should exercise my discretion under section 399A and dismiss Ms Mines’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant

A. Granata, with permission, and G. Reidy, for the Respondent

Hearing details:

2019.

Adelaide; by Telephone.

10, 15 and 17 April.

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