Melissa Borg v Rushton Todd Pty Ltd T/A Spectrum Family Eyecare

[2018] FWC 4400

[2018] FWC 4400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa Borg
v
Rushton Todd Pty Ltd T/A Spectrum Family Eyecare
(U2018/4853)

COMMISSIONER BISSETT MELBOURNE, 27 JULY 2018

Application for an unfair dismissal remedy.

[1] On 9 May 2018, Ms Melissa Borg made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Borg said she was notified of her dismissal by Rushton Todd Pty Ltd t/a Spectrum Family Eyecare (Spectrum) on 17 April 2018, and that it took effect on the same day.

[2] The matter was listed for conciliation on 6 June 2018 but was later cancelled by the Commission due to operational reasons. A Notice of Listing was issued to the parties on the same day to confirm the rescheduled conciliation details for 20 June 2018.

[3] Despite four attempts to telephone Ms Borg on 20 June 2018, the conciliation could not proceed as she could not be contacted.

[4] On 26 June 2018, directions were issued to the parties and the matter was listed for an Extension of Time Conference/Hearing for 10 August 2018 by telephone. Ms Borg was directed to file her material by no later than noon on 3 July 2018, and Spectrum was directed to file its reply material by no later than noon on 10 July 2018.

[5] On 4 July 2018, the Commission attempted to telephone Ms Borg in relation to her overdue material. This was unsuccessful and a voicemail was unable to be left.

[6] On 5 July 2018, an email from the Commission was sent to Ms Borg reminding her that her material was overdue and that she may request an extension to file submissions.

[7] On 6 July 2018, a further attempt to telephone Ms Borg was made in relation to her overdue material. Ms Borg’s roommate answered the telephone call, and advised that she would pass on the Commission’s request to Ms Borg for a return call.

[8] On 11 July 2018, the Commission sent an email to Ms Borg advising her that a non-compliance hearing would be scheduled if she did not file her material or request an extension to file her material by 3.00pm the same day.

[9] On 12 July 2018, as no correspondence was received from Ms Borg, a Notice of Listing was issued to parties scheduling the non-compliance hearing for 13 July 2018. A text message was also sent to Ms Borg advising her of the listing.

[10] The non-compliance hearing proceeded before me on 13 July 2018. Ms Borg could not be contacted. Spectrum made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Borg’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Spectrum’s oral application.

[11] Following the non-compliance hearing, correspondence was sent to Ms Borg, via express post and email, advising her of Spectrum’s s.399A application. Ms Borg was directed to file submissions and other documentary material as to why the Commission should not dismiss her application by close of business on 20 July 2018. The express post tracking ID indicates that the correspondence was delivered to Ms Borg on 18 July 2018.

[12] To date, Ms Borg has not filed any material with the Commission.

[13] 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.’

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

[15] As Ms Borg 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. Ms Borg has failed to respond to numerous attempts made by the Commission to contact her. Apart from initially filing her application, Ms Borg has provided no explanation to the Commission for either her failure to comply with directions or her failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Borg’s application.

[17] An order giving effect to this decision will be issued today.

COMMISSIONER

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