Melissa Tuchin v Ekera Dental Pty Ltd

[2019] FWC 3528

[2019] FWC 3528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa Tuchin
v
Ekera Dental Pty Ltd
(U2019/1381)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 MAY 2019

Application for an unfair dismissal remedy.

[1] On 8 February 2019, Ms Melissa Tuchin 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).

[2] In her Form F2 – Unfair Dismissal Application,Ms Tuchin said her employment had been terminated by Ekera Dental Pty Ltd (Ekera) on 22 January 2018. This appears to have been a typographical error and should read 22 January 2019. In its Form F3 – Employer response to unfair dismissal application, Ekera agreedthat the employment relationship ended on 22 January 2019.

[3] The matter proceeded to a conciliation on 1 April 2019 but did not resolve. Subsequently, the matter was referred for arbitration and a Notice of Listing was sent to the parties on 10 April 2019, by email and post, scheduling the matter for a Jurisdiction (No Dismissal) and Arbitration Conference/Hearing on 6-7 June 2019. Directions were also issued, requiring Ekera to file material in support of its jurisdictional objection by no later than noon on 24 April 2019, Ms Tuchin to file material in support of her application and responding to Ekera’s objections by no later than noon on 1 May 2019, and Ekera to file any material in reply by no later than noon on 8 May 2019.

[4] On 24 April 2019, Ekera filed its material in compliance with the Directions. These were also served on Ms Tuchin via her nominated email address.

[5] No material was received from Ms Tuchin by noon on 1 May 2019.

[6] On 2 May 2019, the Commission attempted to telephone Ms Tuchin in relation to her overdue material. Ms Tuchin was unable to be reached and there was no option to leave a voicemail message. Following this, the Commission sent Ms Tuchin a text message advising that her materials were due to be filed and served by 1 May 2019 and to contact the Commission to further discuss the matter.

[7] On 3 May 2019, a further telephone call was attempted by the Commission to Ms Tuchin. Again, this was unsuccessful and a voicemail message was unable to be left.

[8] On 6 May 2019, the Commission emailed correspondence to Ms Tuchin advising that if no extension request or materials were received from her by 12:00pm on 7 May 2019, her matter would be listed for a non-compliance hearing. The email also warned that her unfair dismissal application may be dismissed as a result of the non-compliance hearing.

[9] As no response was received from Ms Tuchin by 12:00pm on 7 May 2019, a Notice of Listing was sent to the parties scheduling the matter for a non-compliance hearing on 10 May 2019. The Notice of Listing was sent to both Ms Tuchin’s nominated email and postal addresses.

[10] The non-compliance hearing proceeded before Deputy President Masson on 10 May 2019. Ms Tuchin could not be contacted. Ekera made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Tuchin’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Ekera’s oral application.

[11] Following the non-compliance hearing, correspondence was sent to Ms Tuchin’s nominated email and postal addresses advising her of Ekera’s s.399A application. Ms Tuchin was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00pm on 17 May 2019. The correspondence also noted that if the Commission did not receive a response, Ms Tuchin’s application for relief from unfair dismissal may be dismissed.

[12] On 16 May 2019, the Commission received a telephone call from Ms Tuchin. According to the Commission’s records, Ms Tuchin sought an adjournment of her hearing, noted that she had received an email stating that her evidence was due the next day, and advised that she had not been able to file her material as she was seeking legal representation. In response, the Commission advised Ms Tuchin that the email to which she was referring contained a direction for her to file material in response to Ekera’s s.399A application by 17 May 2019 and that if she required an extension, she could request this in writing and provide supporting evidence.

[13] As no material or correspondence was received from Ms Tuchin, the Commission attempted to contact her on 20 May 2019 but was unable to reach her. A voicemail to text message was left, requesting her return call.

[14] To date, Ms Tuchin has not filed any material with the Commission.

[15] 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.

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

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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing her application and attending the conciliation, Ms Tuchin has failed to actively prosecute her case and has provided no explanation to the Commission for either her continued failure to comply with the directions or her failure to attend the non-compliance hearing on 10 May 2019. This is despite acknowledging in the call to the Commission on 16 May 2019 that she had received an email directing her to file material by 17 May 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Tuchin’s application. This ends her unfair dismissal application.

[19] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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