Melanie Elliott v Corsec Services Pty Ltd

[2020] FWC 412

[2020] FWC 412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Elliott
v
Corsec Services Pty Ltd
(U2019/12648)

COMMISSIONER BISSETT MELBOURNE, 29 JANUARY 2020

Application for an unfair dismissal remedy – jurisdictional objections – failure to comply with directions - s.399A application to dismiss.

[1] On 13 November 2019 Ms Melanie Elliott (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act) in respect of the termination of her employment by Corsec Services Pty Ltd (Respondent).

[2] The Respondent filed its Form F3 – Employer Response to Unfair Dismissal Application on 26 November 2019. In its response the Respondent raised two jurisdictional objections on the grounds that the Applicant was not dismissed and the Applicant did not have the requisite minimum employment period.

[3] The matter was listed for conciliation on 5 December 2019 but was later cancelled due to advice received from the respondent that they wanted their jurisdictional objections to be dealt with in the first instance.

[4] On 2 December 2019 directions were issued to the parties and the matter listed for Jurisdiction (Minimum Employment Period – Casual Employee) Conference/Hearing on 10 January 2020.

[5] On 11 December 2019 the Respondent’s representative wrote to the Commission advising that the Respondent did not intend to pursue its jurisdictional objection in regard to the Applicant’s minimum employment period. As a result the matter was listed for Extension of Time (Effective Date of Dismissal) on 31 January 2020. The Applicant was directed to file her materials by no later than noon on 13 January 2020. The Applicant failed to file her submissions by the due date.

[6] On 14 January the Commission attempted to contact the Applicant on her nominated telephone number regarding her failure to file submissions. The Applicant did not answer the call. A voice message was left for the Applicant requesting a return call. The Applicant did not return the Commission’s call.

[7] The Commission again attempted to contact the Applicant on 15 January 2020 to discuss her overdue material however the call went unanswered. A voice message was left requesting the Applicant to contact the Commission. The Applicant did not return the Commission’s call.

[8] Later that day the Commission sent correspondence to the Applicant’s nominated email address advising that her material was overdue and requesting that the she advise the Commission by 10.00 am on 16 January 2020 when she intended to file her material. The correspondence also stated that the matter was at risk of being listed for a Non-Compliance Hearing on 17 January 2020.

[9] On 16 January 2020 the Commission again attempted to contact the Applicant on her nominated telephone number to discuss the Non-Compliance Hearing. The Applicant did not answer the call. A voice message was left explaining why the matter was listed for the Non-Compliance Hearing, the purpose of the Hearing and what will occur at the Hearing. The Commission requested the Applicant contact the Commission to discuss the matter.

[10] As no response was received from the Applicant the Commission issued a Notice of Listing to the parties scheduling a Non-Compliance Hearing for 17 January 2020.

[11] The Non-Compliance Hearing proceeded before Commissioner Lee on 17 January 2020. The Applicant could not be contacted. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with directions of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[12] On 17 January 2020, following the Non-Compliance Hearing, correspondence was sent to the Applicant’s nominated email address advising her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss her application by no later than 4.00 pm on 24 January 2020. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[13] To date, the Applicant has not filed any material with the Commission and has failed to respond to numerous attempts made by the Commission to contact her.

[14] 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.

[15] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact her and has provided no explanation to the Commission for her failure to comply with directions of the Commission.

[17] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued with this decision.

COMMISSIONER

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