Melysa McGrath v Guppy's Early Learning Centre
[2022] FWC 1631
•27 JUNE 2022
| [2022] FWC 1631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Melysa McGrath
v
Guppy’s Early Learning Centre
(U2022/4406)
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 27 JUNE 2022 |
Application for an unfair dismissal remedy - application under s.399A – applicant’s failure to comply with directions – no response to application for dismissal – application dismissed
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by Guppy’s Early Learning Centre (Respondent) to dismiss an unfair dismissal application brought against it by Ms Melysa McGrath (Applicant).
On 20 May 2022, I listed the matter for Case Management Conference (Mention/Directions) to occur at 3:30pm on Tuesday 7 June 2022 and a notice of listing was sent to the parties by email regarding the same. The notice of listing required the Applicant to confirm her attendance by 4:00pm on Friday 3 June 2022, however the Applicant did not do so.
On 7 June 2022, the Applicant failed to attend the listed conference, despite multiple attempts to contact her on her nominated phone number provided on her Form F2 application.
My Chambers wrote to the Applicant that day regarding her failure to attend the listed conference and directing the Applicant to provide reasons, in writing, for failing to attend the conference by 12 noon on Friday 10 June 2022. The Applicant was put on notice that if no explanation was received from her, then I would consider dismissing the application under s.587 of the Fair Work Act 2009 (the Act). The Applicant was also put on notice that the Respondent would be at liberty to make a formal application that the unfair dismissal application be dismissed in accordance with s.399A of the Act.
The Applicant did not comply with the direction to provide her reasoning by 12 noon on Friday 10 June 2002, however, on 12 June 2022, the Applicant emailed my Chambers to advise that she had been involuntarily admitted to a hospital, had only been given her phone back on 11 June 2022, and was unable to make contact with anyone and had no access to her emails. I asked the Applicant to provide evidence regarding her circumstances and on 13 June 2022, the Applicant provided my Chambers with a Medical document. On review of the document, the Applicant was asked to provide further information as the document provided did not indicate that the Applicant was unable to attend the conference on 7 June 2022. In further correspondence with the Applicant, the Applicant conceded that she was not in hospital on the date of the conference and that she was uncontactable that day because her friends would not return her phone to her.
Despite the lack of medical evidence provided, I considered it appropriate to give the Applicant the benefit of the doubt and I relisted the matter for Case Management Conference (Mention/Directions) to occur at 9:00am on Tuesday 21 June 2022.
On 21 June 2022, the Applicant failed to attend the re-listed conference. My Associate attempted to contact the Applicant on her nominated phone number 9 times to join the conference but was unsuccessful. The Respondent attended the conference and indicated that it would be seeking dismissal of the application under s.399A of the Act.
On 21 June 2022, the Respondent filed a Form F1 application seeking dismissal of this matter pursuant to s.399A of the Act due to the non-attendance of the Applicant at the previous listed conferences.
My Chambers wrote to the Applicant on 21 June 2022, referring to the Respondent’s s.399A application and inviting the Applicant to make any submissions in relation to that application by close of business Thursday 23 June 2022. That correspondence advised the Applicant that if no response was received that I proposed to determine the s.399A application on the papers.
On 21 June 2022, the Applicant emailed my Chambers in response to the abovementioned correspondence which read: “No please I need one more chance my phone is really not cooperating. I didn’t even have it on silent. Please please please don’t abandon me.” My Chambers responded to the Applicant by bringing her attention to the directions and confirming that she would need to comply with those directions if she wished to pursue her application, that is, to make any submissions she may wish to may in relation to the Respondent’s s.399A application by close of business on Thursday 23 June 2022.
The Applicant did not make any further submissions other than the original response received by my Chambers on 21 June 2022 mentioned in the preceding paragraph. Further, the Applicant did not respond to my subsequent correspondence of 21 June reminding her of my directions inviting the Applicant to make any submissions in relation to the s.399A application by close of business on Thursday 23 June 2022.
At its highest, if I consider the email from the Applicant mentioned in paragraph [11] as her response to my directions of 21 June 2022, I do not find that the co-operation of the Applicant’s phone is a sufficient reason to not show up for a second time. There are other mechanisms she could have used to contact the Commission regarding the conference of 21 June 2022 such as by sending an email as she did later that same day. I also note that she was given a reasonable opportunity to provide more information in support of her no show and she failed to do so.
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 attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application’ (s.399A(1)(a)), or ‘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 attend the conferences of 7 June 2022 and 21 June 2022 and further failed to comply with my directions of 10 June 2022 and 21 June 2022. The details of those conference and directions are set out in the preceding paragraphs. I consider that the failure was unreasonable for the following reasons:
(A)The Applicant has repeatedly failed to attend the listed conferences and comply with my directions.
(B)I consider that the Applicant has been afforded reasonable opportunity to redress her non-compliance but has failed to do so. 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 comply with my directions, her failure to show up to two listed conferences and her failure to provide an explanation for this. She also failed to respond as to why the Commission ought not dismiss his application pursuant to the Respondent’s s.399A application. 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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