Mandi Cumming v P and L fresh meats

[2018] FWC 1392

[2018] FWC 1392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mandi Cumming
v
P and L fresh meats
(U2017/12264)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 MARCH 2018

Application for an unfair dismissal remedy.

[1] On 17 November 2017, Ms Mandi Cumming made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Cumming stated that she was dismissed by P and L fresh meats (P and L fresh meats) on 27 October 2017.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application lodged on 19 December 2017, P and L fresh meats raised a jurisdictional objection to Ms Cumming’s application. P and L fresh meats raised the objection that they were a small business and that Ms Cumming’s dismissal was consistent with the Small Business Fair Dismissal Code.

[3] The matter was listed for conciliation on 16 January 2018, though the matter did not resolve at that time. The conciliator issued directions for the filing of material ahead of a hearing. Ms Cumming was required to file an outline of submissions, any witness statements and documentary material by noon, Monday 12 February 2017 (sic). The directions were subsequently amended on 25 January 2018, directing that P and L fresh meats file an outline of argument: objections, statement(s) of evidence and a document list by Monday, 12 February 2018, in relation to their jurisdictional objection. Ms Cumming was required to file an outline of argument, outline of argument: objections, statement(s) of evidence and a document list by no later than noon on Monday, 19 February 2018.

[4] On 7 February 2018, P and L fresh meats sent correspondence to the Fair Work Commission (Commission) advising that it did not wish for the matter to be listed for a hearing on the jurisdictional objection and that it had raised the objection in error by ticking the relevant box next to the Small Business Fair Dismissal Code in its Form F3. As a result, the directions were amended to remove the requirement for P and L fresh meats to file on its objection however Ms Cumming’s compliance date remained unchanged.

[5] Ms Cumming did not file her material by the due date and in the afternoon of 19 February 2018, an attempt to contact Ms Cumming via telephone was made, however this was unsuccessful and no voicemail was able to be left. The following day, an email was sent to Ms Cumming confirming no material had been filed and that her submissions were now overdue. Ms Cumming was advised that if she would like to request an extension, she would need to do so via email and provide reasons for the request. Further, Ms Cumming was advised that should she fail to respond to this correspondence, the matter may be listed for non compliance hearing.

[6] On 21 February 2018, a further attempt to telephone Ms Cumming was made and a voicemail was left advising that the matter would be listed for a non compliance hearing and that the hearing would proceed even in her absence. The voicemail also advised that P and L fresh meats could make an application to dismiss the matter. The Commission file note indicated it would be conducted at 11.00 am but did not disclose the date. Further, the Notice of Listing notified that the non compliance listing would take place at 11.00 am on 23 March 2018.

[7] As Ms Cumming did not comply with the directions, the matter was allocated for a non compliance hearing before Deputy President Gooley on 23 February 2018.

[8] Ms Cumming did not attend the non compliance hearing, I have noted the Notice of Listing had the non compliance hearing taking place on 23 March 2018 but also note that Deputy President Gooley’s Associate made three attempts to telephone Ms Cumming on 23 February 2018 and left two voicemail messages asking that she contact Deputy President Gooley’s chambers. The non compliance hearing proceeded and P and L fresh meats made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Cumming had failed to comply with a direction of the Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted P and L fresh meats’ oral application. Correspondence was then sent to Ms Cumming informing her of P and L fresh meats’ s.399A application. Ms Cumming was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Monday, 5 March 2018. This letter was sent to Ms Cumming via both her nominated email and postal addresses.

[9] To date, Ms Cumming has not filed any material with the Commission in response to the direction of the Deputy President.

[10] 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.

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

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

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Cumming has failed to respond to the many attempts by the Commission to contact her. Apart from initially filing her application and attending the conciliation conference, Ms Cumming has failed to prosecute her case and provided no explanation for either her failure to comply with directions for the Arbitration conference/hearing and in response to the s.399A application made by P and L fresh meats or her non-attendance at the non compliance hearing. Ms Cumming was put on notice that there would be a non compliance hearing. Further, the attempt to notify Ms Cumming by telephone ahead of the non compliance hearing was not responded to. Three attempts were made to contact Ms Cumming at the time of the non compliance hearing. There was then a follow up letter after the non compliance hearing. Ms Cumming responded to none of this communication.

[14] In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Ms Cummings’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR600990>