Lornita Papworth v Skilled Medical Pty Ltd

[2016] FWC 7869

[2016] FWC 7869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lornita Papworth
v
Skilled Medical Pty Ltd
(U2016/8939)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 18 August 2016, Ms Lornita Papworth made an application for unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). Ms Papworth in her application stated that her employment had been terminated by Skilled Medical Pty Ltd on 28 July 2016. In their response to Ms Papworth’s application, Skilled Medical Pty Ltd (Skilled Medical) stated that Ms Papworth’s employment had been terminated on 29 July 2016.

[2] The matter was listed for conciliation on 23 August 2016 however this did not take place because Skilled Medical requested that the matter involving a jurisdictional objection relating to genuine redundancy be heard first.

[3] The matter was listed for hearing and directions were issued on 12 September 2016.

[4] Ms Papworth was directed to file an outline of submissions, witness statements and any other documentary evidence she wished to rely on by noon on 3 October 2016.

[5] She did not comply with this direction. The Commission made telephone contact with Ms Papworth’s then representative on 3 October 2016 and raised with them Ms Papworth’s non-compliance with directions. Ms Papworth’s representative informed the Commission that they had been attempting to contact Ms Papworth for instructions for a number of weeks and foreshadowed their intention to file an Form F54 – Notice of representative ceasing to act (Form F54).

[6] On 3 October 2016, the Commission attempted to make telephone contact with Ms Papworth to raise her non-compliance with directions. No answer was received. A voice message was left requesting that she urgently contact the Commission.

[7] No correspondence or response was received from Ms Papworth.

[8] On 4 October 2016, the Commission telephoned the office of Ms Papworth’s then representative regarding their foreshadowed intention to lodge a Form F54. As the then representative of Ms Papworth was unavailable at the time, the Commission informed their office that the matter would be listed for non-compliance hearing.

[9] The Commission also telephoned the representative of Skilled Medical and advised Ms Papworth’s then representative had foreshadowed the intention to lodge a Form F54 as they had not been able to contact Ms Papworth. The Commission also referred to its unsuccessful attempt to contact Ms Papworth and indicated that if it did not hear from her by close of business the matter would be listed for a non-compliance hearing. The representative of Skilled Medical also advised they would seek instruction as to whether Skilled Medical wanted to lodge an application pursuant to section 399A of the Act (section 399A application). The Commission agreed to a request from the representative of Skilled Medical for an update in relation to the status of the matter on 5 October 2016.

[10] The Commission then sent an email to Ms Papworth raising her non-compliance with directions and informing her that her representative had advised they had not been able to contact her. The Commission also referred to its prior attempt to make telephone contact and the voice message left requesting that she contact the Commission urgently. Ms Papworth was informed that she had until close of business to contact the Commission and a failure to do so would result in the matter being listed for a non-compliance hearing.

[11] On 5 October 2016, the Commission updated the representative of Skilled Medical. The Commission advised it had emailed Ms Papworth on 4 October 2016 regarding her non-compliance with directions and to inform her that the representative of Skilled Medical Pty Ltd had foreshadowed the intention to lodge a section 399A application, such that she should contact the Commission urgently. The representative of Skilled Medical again advised of their intention to file a section 399A application. The Commission advised that once such an application was received, it would be referred to the Panel Head – Termination of Employment for determination.

[12] Skilled Medical subsequently filed a Form 1 Application seeking dismissal of the application pursuant to section 399A of the Act.

[13] The Commission sent an email in reply to the representative of Skilled Medical acknowledging receipt and advised that the parties would be contacted by the Commission once a decision has been made.

[14] Also on 5 October 2016, Ms Papworth’s representative sent an email to the Commission lodging a Form F54 to notify that they had ceased acting for Ms Papworth.

[15] On 6 October 2016, correspondence was sent to the parties providing Ms Papworth 7 days to respond with submissions as to why her application should not be dismissed. The Commission advised that if no response was received within this timeframe then the section 399A application would be referred to the Panel Head for determination.

[16] No response was received from Ms Papworth within the 7 days provided for.

[17] On 14 October 2016, a cancellation Notice of Listing was sent to parties notifying that the hearings listed for 14-16 November 2016 had been cancelled.

[18] Section 399A of the 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.

(2) This section does not limit when the FWC may dismiss an application.”

[19] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[20] As Ms Papworth did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[21] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Papworth has provided no explanation for her failure to comply with directions. She has failed to respond to the many attempts by the Commission to contact her. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Papworth’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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