Lisa Delahunty v Country Buddies Wangaratta Pty Ltd

[2021] FWC 6060

[2021] FWC 6060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Delahunty
v
Country Buddies Wangaratta Pty Ltd
(U2021/5434)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 6 OCTOBER 2021

Application for an unfair dismissal remedy – s 399A application to dismiss – application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 30 September 2021. Ms Lisa Delahunty (Applicant) lodged an unfair dismissal remedy application under s 394 of the Fair Work Act 2009 (Act) on 22 June 2021. The application is in relation to the Applicant’s dismissal from her employment at Country Buddies Wangaratta Pty Ltd (Respondent) which is said to have occurred on 16 June 2021, noting that the Applicant had earlier given written notice of her resignation which was to take effect on 17 June 2021.

[2] The application was listed for a case management conference on 6 August 2021 for the purposes of readying the application for a hearing. On 1 August 2021, the Applicant sent an email to my Chambers advising that the date and time for the listing of the case management conference did not suit her because of a medical appointment. On 2 August 2021, my Chambers sent an email to the Applicant requesting that she provide some evidence of the medical appointment said to conflict with the date and time scheduled for the case management conference. No response was received to that email. On 5 August 2021, a further email was sent from my Chambers following up on the earlier request that some evidence be provided of the medical appointment and again no response was received by my Chambers. Consequently, the case management conference proceeded as scheduled on 6 August 2021.

[3] Prior to the conference my Associate called the Applicant on the telephone number given in the application. This number was also confirmed to a staff member by email on 1 July 2021 in connection with a staff conciliation conference scheduled for 12 July 2021. The Applicant did not answer any of the calls that were made to her prior to the conference on 6 August 2021. She did she attend the conference nor provide any explanation for the failure to attend. The conference proceeded and directions for the preparation of this matter for hearing were made at the conference and issued in writing to the parties later that day.

[4] Amongst the directions, the Applicant was required to file an outline of submissions, any statement(s) of evidence and any documentary material(s) on which she intended to rely by no later than 5:00pm on 27 August 2021, and the matter was listed for a hearing at that stage in person on 30 September 2021. The Applicant did not file any materials in support of her application and failed to comply with the directions. No request has been received from the Applicant to vary the directions and no explanation for the failure to comply with those directions has been provided.

[5] On 6 September 2021, my Associate called the Applicant on her mobile phone number. The telephone call was answered by a person with a female voice who indicated that my Associate must have dialled the wrong number and the person then terminated the call. The same number has been used on numerous occasions to try and contact the Applicant. During the hearing on 30 September 2021, my Associate telephoned that phone number and a voicemail message from the telephone number indicated, “You know the drill”. I asked Ms Probert, who appeared for the Respondent, whether she recognised the voice on the voicemail message and Ms Probert stated that the voice was that of the Applicant. In the circumstances, I am satisfied that the telephone number which has been used by my Associate to endeavour to contact the Applicant on numerous occasions is the Applicant’s telephone number. I am also satisfied that it is likely the person who answered the call on 6 September 2021 was the Applicant and that she endeavoured to mislead my Associate.

[6] On 7 September 2021, my Associate sent an email to the Applicant noting that she had failed to comply with directions and requesting that she do so as soon as possible. The email also requested, given the earlier telephone call on 6 September 2021, that the Applicant provide any updated telephone contact details. No submissions have been received, no reply to that email has been received and no explanation has been provided for a failure or an inability to comply with the directions or to reply to any correspondence or communications from the Commission.

[7] On 16 September 2021, my Associate again followed up with the Applicant by telephone in respect of her failure to comply with directions and seeking that any submissions and other documents be filed. My Associate left a voicemail message requesting that the Applicant call my Chambers. No telephone call has been received and no submissions have been filed in response to the request.

[8] On 7 September 2021, the Applicant and the Respondent were each sent an amended notice of listing indicating that the hearing, at that stage in relation to the s 394 application, would be dealt with by video using Microsoft Teams instead of in person given the restrictions in place in Victoria in response to the COVID-19 pandemic.

[9] The Respondent has filed its materials in support of its position, notwithstanding the Applicant's failure. On 21 September 2021, the Respondent made an application pursuant to s 399A of the Act requesting that, in the circumstances of the various failures to comply with directions and a failure to attend conferences, the application be dismissed. The s 399A application was served on the Applicant by the Respondent on 21 September 2021 by email.

[10] On 22 September 2021, my Associate sent an email to the parties indicating that the Respondent's application under s 399A would be dealt with at the hearing on 30 September 2021. The Applicant has failed to attend the hearing on 30 September 2021 to respond to the s 399A application or to prosecute her s 394 application. All this has occurred without explanation. There has been no application for any adjournment or any variation to the earlier directions that I have made.

[11] Before the commencement of proceedings on 30 September 2021 my Associate again endeavoured to telephone the Applicant on her mobile phone number. My Associate left a voicemail message asking her to contact the Commission but there has been no response. As stated earlier, my Associate called the Applicant again during the hearing. The call went through to voicemail and Ms Probert identified the voice on the message service as that of the Applicant which I accept.

[12] Section 399A provides the Commission with a discretion to dismiss an unfair dismissal remedy application on application by an employer, in this case the Respondent, in circumstances where the Commission is satisfied that the Applicant has unreasonably failed to attend a conference conducted by the Commission, has unreasonably failed to attend a hearing held by the Commission or has unreasonably failed to comply with a direction or order of the Commission. As the chronology outlined above indicates, there have been multiple failures on the part of the Applicant to comply with directions. Those failures have occurred in circumstances where there is no explanation for the failure given and no application for a variation of the directions made. The failure to comply was unreasonable.

[13] The Applicant also failed to attend the case management conference scheduled for 6 August 2021. The Applicant failed to provide any probative material supporting her assertion that she had a conflicting medical appointment despite attempts to obtain that information from her. I am satisfied that she failed to attend that conference without any reasonable explanation and that, in the circumstances, the failure to attend was unreasonable.

[14] The matter was listed for hearing on 30 September 2021 and again, despite attempts to contact the Applicant, the Applicant failed to attend. The attempts to contact the Applicant have been wholly unsuccessful. There has been no application for an adjournment and no explanation for the failure of the Applicant to attend. In those circumstances, I am also satisfied that the Applicant has unreasonably failed to attend a hearing of the Commission.

[15] Although the power to dismiss an application under s 399A should generally be exercised with caution, it seems to me on the facts as set out earlier that this is a clear case where the power should be exercised. The Respondent has been put to the task of preparing its case and has done so without the benefit of any material other than the bare application filed to assist it to answer the application. The Applicant has failed to participate in scheduled conferences and hearings and has done so in circumstances that are unreasonable.

[16] I am therefore satisfied that the Applicant has failed unreasonably to attend scheduled conferences and hearings and has failed unreasonably to comply with directions of the Commission. The power to dismiss is therefore enlivened.

[17] I am not persuaded that there are any discretionary considerations which would weigh against the exercise of my discretion in favour of the Respondent and in the circumstances set out above I propose to exercise that discretion in its favour and consequently the application is dismissed.

[18] An order dismissing the application was issued on 30 September 2021 in PR734439.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant

L Probert for the Respondent

Hearing details:

2021
Melbourne (via video)
30 September

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<PR734572>