Michelle Tregea v MSS Security Pty Limited

[2014] FWC 7440

[2014] FWC 7440

The attached document replaces the document previously issued with the above code on 22 October 2014.

The footnote on page 2 refers to PR95665. The correct footnote should be PR956665.

Yota Amanatidis

Associate to Deputy President Gooley.

Dated 23 October 2014.

[2014] FWC 7440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Tregea
v
MSS Security Pty Limited
(U2014/8120)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 1 July 2014, Ms Michelle Tregea made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Tregea’s employment had been terminated by MSS Security Pty Limited on 10 June 2014.

[2] The matter was listed for conciliation on 18 August 2014 and 2 October 2014, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Tregea was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 6 October 2014.

[4] Ms Tregea did not comply with this direction and the matter was listed for a non compliance hearing before me on 10 October 2014.

[5] On 7 October 2014, the MSS Security Pty Limited filed an objection to the application and sought the dismissal of Ms Tregea’s application. MSS Security Pty Limited, based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the conciliation conferences.

[6] On 7 October 2014, Ms Tregea was sent correspondence informing her of MSS Security Pty Limited’s section 399A application. Ms Tregea was directed to file submissions and other documentary material in response to MSS Security Pty Limited’s application by close of business on 17 October 2014. Ms Tregea was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Tregea did not participate in the non-compliance hearing and did not contact the Commission either before or after the 10 October 2014, to explain her non participation or her non compliance.

[8] Ms Tregea did not file any material with the Commission in opposition to MSS Security Pty Limited’s application to dismiss her unfair dismissal application.

[9] 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.

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

[11] On application by an employer, the Commission has the discretion to dismiss an application because there has been non compliance with directions of the Commission.

[12] The role of case management was discussed by the Full Bench in Ghalloub v Anon Riske Services Australia Limited 1.

[13] In summary that decision said:

• the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;



• directions play an important role in case management;



• accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;



• the circumstances of each case is central;



• a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant



• continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[14] While not an exhaustive list of the matters that may be considered, I will adopt the approach of the Full Bench in this matter.

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

[16] Ms Tregea has taken no steps to prosecute her case. Ms Tregea did not participate in the first conciliation. She then requested a further conciliation which MSS Security Pty Limited agreed to participate in and the Commission accommodated. However, again Ms Tregea did not participate. Since that time Ms Tregea has not contacted the Commission, nor responded to attempts to contact her. She has failed to comply with the original directions issued, and has failed to put forward any submissions in opposition to the application to dismiss her claim.

[17] Commission staff have made numerous attempts to contact Ms Tregea on the phone numbers she supplied as her contact numbers, but she has not responded. She was advised on more than one occasion that her application would be dismissed if she did not comply with directions.

[18] Ms Tregea is aware of the process for applying for an adjournment, as she had previously applied for, and was granted an adjournment.

[19] While I accept that losing one’s employment can have a significant impact, an applicant seeking a remedy for what he or she alleges is an unfair dismissal must take the necessary steps to prosecute his or her claim. If he or she is unable to do so because of pressing personal circumstances he or she must contact the Commission in a timely fashion to explain his or her situation. An applicant who ignores his or her obligations will face the very real prospect that his or her application will be dismissed for non compliance. In this case, Ms Tregea has ignored the directions of the Commission and ignored all attempts by the Commission to contact her since the failed conciliation. She has made no attempt to contact the Commission to explain her situation.

[20] I find that Ms Tregea has demonstrated an unwillingness to comply with the directions of the Commission.

[21] In those circumstances I have decided to exercise my discretion to dismiss Ms Tregea’s application for remedy from unfair dismissal. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

<Price code A, PR556827>

 1   PR956665

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