Melanie Smith v Quality Food Services Pty Ltd T/A Quality Food Services
[2023] FWC 340
•9 FEBRUARY 2023
| [2023] FWC 340 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Melanie Smith
v
Quality Food Services Pty Ltd T/A Quality Food Services
(U2022/11581)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 9 FEBRUARY 2023 |
Application under s.399A – applicant’s failure to comply with directions – no explanation for failure – application dismissed
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by Quality Food Services Pty Ltd T/A Quality Food Services (Respondent) to dismiss an unfair dismissal application brought against it by Mrs Melanie Smith (Applicant).
On 13 January 2023, I issued directions (directions) which required the Applicant to file and serve written submissions in relation to the merits and any witness statements or other material on which the Applicant intended to rely in support of her application for an unfair dismissal remedy by 4:00pm on Friday, 27 January 2023.
On 18 January 2023, a conference was held before me in an attempt to resolve the matter via conciliation. Ms Bambi Scholes-Miller (National Human Resources Manager) appeared for the Respondent and Ms Smith represented herself. The matter was unable to be resolved. During the conference I reminded the Applicant that her submissions were due to be filed with my Chambers and served on the Respondent by the time and date listed in the directions. The details regarding the Hearing of the substantive matter were confirmed and my Chambers issued amended directions, highlighting that the only change was to be the date of the Hearing. The Applicant acknowledged the requirement to file her submissions by the date and time of the directions.
The Applicant failed to do so. At 4:58pm on 27 January 2023, my Chambers wrote to the Applicant, noting that the material had not been filed and granting an extension to file the material together with a reasonable explanation for the failure to comply with the directions by 4:00pm Monday 30 January 2023. No response was received.
On 1 February 2023, the Respondent applied for dismissal of this matter pursuant to s.399A(1)(b) of the Act. On that same day, I directed the Applicant file submissions as to why her application should not be dismissed. The Applicant was directed to file the submissions with my Chambers and serve a copy on the Respondent by no later than 4:00pm on Tuesday 7 February 2023. The Applicant failed to do so.
The Parties were also advised that the matter would be listed for a non-compliance hearing on Thursday 9 February 2023.
The Applicant failed to attend the non-compliance hearing on 9 February 2023. At the Hearing, despite the Applicant’s failure to join on the link provided to her, my Chambers attempted to contact her by phone. The call was answered by a person who claimed she was the sister of the Applicant. My Chambers requested to speak to the Applicant as a matter of urgency. The call ended. Approximately five minutes later, my Chambers attempted to call the phone again and the call went unanswered. My Chambers sent a text message to the Applicant’s phone as follows:
“The Commission has attempted to contact you for the Hearing before Deputy President Dobson.
You are reminded of the obligation under s.592 of the Act under which a person is directed to attend a proceeding at a specified time and place.
The Deputy President directs you to attend”
Despite this the Applicant still failed to respond.
Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s.399A(1)(b)). I am satisfied that the Applicant unreasonably failed to comply with my directions of 13 January 2023, 18 January 2023, 27 January 2023, and 1 February 2023 and that she failed to attend the non-compliance hearing of 9 February 2023. The details of those directions and the hearing are set out in the preceding paragraphs. The Applicant failed to comply with those directions and failed to attend the hearing as directed. I consider that the failure was unreasonable for the following reasons:
(A)The Applicant has repeatedly failed to offer any reasonable explanation for her failure to comply with the directions.
(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress her non-compliance but has failed to do so. In particular, the application was listed for a non-compliance hearing, which, as I explained to the Applicant, was to serve the purpose of allowing her to explain why she had failed to comply with the directions, but she did not attend the hearing. Nor has the Applicant since provided an acceptable explanation for her failure or given any indication that she intends to file her materials in the near future. Nor has the Applicant filed any submissions as to why her application should not be dismissed pursuant to the s.399A application brought by the Respondent.
My discretion to dismiss the Applicant’s unfair dismissal application under s.399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for her failure to comply with my directions and the fact that she has persisted in failing to file her materials. She also failed to attend the non-compliance hearing. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application. The Respondent is entitled to understand the case that is put against it in good time so that it may properly respond. This is a matter of basic fairness.
For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.399A.
Pursuant to s.399A, the Applicant’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
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