Marzana Mallick v Yinghengda Pty Ltd t/a Oporto (Kogarah & Roselands Shopping Centre)

[2016] FWC 5257

[2016] FWC 5257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Marzana Mallick
v
Yinghengda Pty Ltd t/a Oporto (Kogarah & Roselands Shopping Centre)
(U2016/5265)

VICE PRESIDENT HATCHER SYDNEY, 2 AUGUST 2016

Application for relief from unfair dismissal.

Introduction and background

[1] On 9 March 2016 Ms Marzana Mallick lodged an application under s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in relation to her dismissal from employment with Yinghengda Pty Ltd t/a Oporto (Kogarah & Roselands Shopping Centre) (respondent). On 19 May 2016 a notice of listing of the matter was sent to the parties which identified the hearing date as being 10.00am on 27 July 2016 and the hearing location as being at Terrace Tower at 80 William Street, Sydney. The notice of listing was accompanied by directions which required the applicant, Ms Mallick, to file and serve an outline of submissions and any witness statements and other documentary material upon which she intended to rely by noon on 30 May 2016. The respondent was required to file and serve its submissions and evidence by noon on 20 June 2016.

[2] On 30 May 2016 Ms Mallick filed an outline of submissions and a number of documents, but no witness statements, pursuant to the directions. The respondent did not comply with the directions, in that it did not file its outline of submissions or any witness statements by 20 June 2016. After some communications by my Associate with the respondent and its legal representatives about its failure to comply with the directions, an extension of time until 19 July 2016 was eventually sought and granted. The respondent filed and served an outline of submissions and a witness statement late on 19 July 2016.

[3] On 11 July 2016 I caused to be sent to the parties an email inquiring as to whether they preferred Ms Mallick’s application to be dealt with at a determinative conference or a formal hearing, whether either party wished to be represented by a lawyer or paid agent at the conference/hearing, whether representation would be opposed, and whether any further conciliation of the matter would be of utility. On 14 July 2016 Ms Mallick replied by email as follows:

“I would like to choose further conciliation of the matter by Vice President Hatcher prior to the conference.

If I want to present any witness of mine, in that case what should I do?”

[4] My Associate replied to Ms Mallick’s email the same day as follows:

“Thank you for your email, it is noted that you would prefer a further conciliation prior to the conference.

If you wish to call upon a witness during a hearing, you need to file a witness statement. According to the Directions issued on your Notice of Listing, witness statements were to be filed the same time as your submissions which was on 30 May 2016. You will need permission from the Commission to file a late witness statement. If you would like permission, please email the Chambers inbox and include reasons for why the witness statement is late.

If you could please provide responses to the rest of the questions (questions 1 – 3) sent to you in my email of Monday 11 July 2016, that would be much appreciated.”

[5] Ms Mallick did not subsequently seek to file any witness statements.

[6] On 19 July 2016 I caused to be sent to the parties an email which stated as follows:

“The Commission has determined the following:

1. The matter will be dealt with by way of determinative conference pursuant to s.398 of the Fair Work Act 2009.  

2. The Vice President will conduct a conciliation conference at the commencement upon request.”

[7] On 25 July 2016 I caused the parties to be sent an email which stated that the respondent was granted permission to be represented by lawyers pursuant to s.596(2)(a) of the FW Act.

[8] At 10.00am on 27 July 2016, when Ms Mallick’s application was called on for the scheduled determinative conference, there was no appearance by her. The matter was adjourned until 10.30am so that inquiries could be made about her non-attendance. The telephone contact number listed on her application was called by my Associate three times. On each occasion the call was not answered, and a message was left requesting Ms Mallick to contact the Commission urgently. An email to similar effect was sent to Ms Mallick. No response was received prior to 10.30am.

[9] When the matter resumed at approximately 10.30am, the respondent applied for the matter to be dismissed pursuant to s.399A of the FW Act, and foreshadowed an application for costs. I determined that, in order to ensure that Ms Mallick’s non-attendance was not the result of some misadventure, she be allowed until 5.00pm on 29 July 2016 to provide an explanation for her non-attendance before the matter was dealt with under s.399A.

[10] At 12.36pm on 27 July 2016 I caused to be sent to Ms Mallick the following email:

“Your matter was due to be heard at 10:00am today, however you did not appear. 

The Commission made various attempts to contact you this morning.

If you have not contacted the Commission by 5:00pm Friday 29 July 2016 with a credible explanation as to why you did not appear, your application will be dismissed under s.399A of the Fair Work Act 2009.

Please note, the respondent has foreshadowed their intention to make an application for costs should this matter be dismissed.”

[11] Ms Mallick did not make any contact with the Commission, by telephone, email or otherwise, prior to 5.00pm on 29 July 2016.

[12] At 9.02am on 1 August 2016 Ms Mallick sent an email to my Associate stating the following:

“I was busy with my exams and totally forgot about the date. Moreover I found the submissions from Yinghengda very late, I never had a chance to go through.”

[13] In response to this email, the respondent has pressed its application for the matter to be dismissed under s.399A.

Consideration

[14] Section 399A of the FW Act provides:

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.

Note 1:       For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2:       The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.

[15] Under s.399A(1) the Commission has the discretionary power, on application by the employer, to dismiss an application for an unfair dismissal remedy subject to the precondition that it is satisfied that the applicant has unreasonably failed to do one or more of the matters specified in paragraphs (a), (b) and (c).

[16] I am satisfied that Ms Mallick unreasonably failed to attend the determinative conference listed for 10.00am on 27 July 2016. The explanation she has belatedly advanced for her non-attendance is not credible and I do not accept it. Ms Mallick was in contact with the Commission about her matter as late as 14 July 2016, and she was sent emails by the Commission about the matter on 19 July and 25 July 2016 (as well as having been served with the respondent’s evidence and submissions on 19 July 2016). In those circumstances it is simply not believable that Ms Mallick forgot about the date of the conference. No particulars have been provided about the exams she was allegedly engaged in. In relation to the late provision of the respondent’s evidence and submission, at no stage prior to 27 July 2016 did Ms Mallick register any complaint about this or request an adjournment. Her credibility is further diminished by her completely unexplained failure to reply to the contacts made by the Commission on 27 July 2016 about her non-attendance until the morning of 1 August 2016. The only inference I can draw is that Ms Mallick had no proper excuse for her non-attendance. No notice was given to the respondent about her non-attendance, which resulted in an unnecessary attendance at the Commission by the respondent and its legal representative. As a result I consider Ms Mallick’s failure to attend to have been plainly unreasonable.

[17] I consider it appropriate in all the circumstances to exercise my discretion in favour of the respondent’s application to dismiss her unfair dismissal remedy application pursuant to s.399A. Ms Mallick unreasonably failed to take advantage of the opportunity afforded to her to present her case that she was unfairly dismissed and thereby caused unnecessary inconvenience to and legal costs to be incurred by the respondent. I do not consider that she should be afforded a second opportunity to present her case, and I do not in any event have confidence that she would attend the Commission if she was afforded that second opportunity.

Order and directions

[18] The following order and directions are made:

(1) Ms Mallick’s application in matter no. U2016/5265 is dismissed.

(2) The respondent shall file in the Commission and serve on Ms Mallick any application for costs, and its submissions and any evidence in support of that application, within seven days of the date of this decision.

(3) Ms Mallick shall file in the Commission and serve on the respondent her submissions and any evidence upon which she wishes to reply in opposition to the costs application within 14 days of the date of this decision.

VICE PRESIDENT

Appearances:

C.Agnew for Yinghengda Pty Ltd t/a Oporto (Kogarah & Roselands Shopping Centre)

Hearing details:

2016.

Sydney:

27 July.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR583602>