Mikaela Monigatti v Eats and Treats Cafe T/A Eats and Treats Cafe

[2018] FWC 3924

[2018] FWC 3924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mikaela Monigatti
v
Eats and Treats Cafe T/A Eats and Treats Cafe
(U2018/2571)

COMMISSIONER BISSETT SYDNEY, 3 JULY 2018

Application for an unfair dismissal remedy.

[1] On 13 March 2018, Ms Mikaela Monigatti 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 Monigatti said her employment had been terminated by Eats and Treats Cafe on 25 February 2018. She later confirmed she had commenced working at Eats and Treats Cafe on 25 August 2017.

[2] The matter was the subject of conciliation, however did not resolve. Consequently, directions were issued and the matter was listed for Jurisdiction Hearing (Minimum Employment Period – Small Business). Eats and Treats Cafe was directed to file its material by noon on 14 May 2018 and Ms Monigatti was directed to file her material by noon on 24 May 2018.

[3] Neither Eats and Treats Cafe or Ms Monigatti complied with the direction to file material. Emails were sent to Eats and Treats Cafe on 14 and 18 May 2018 regarding the status of its material. There was no response from Eats and Treats Cafe at that time.

[4] On 24 May 2018, the Commission attempted to telephone Ms Monigatti in relation to her material, however there was no answer and no option to leave a voicemail. An SMS message was then sent to Ms Monigatti which requested a return call. The following day, an email was sent to Ms Monigatti which noted her material was due by noon on 24 May 2018 and any request for an extension to file material should be made, in writing, as soon as possible.

[5] On 28 May 2018, a voicemail message was left for Ms Monigatti requesting that she telephone the Commission as soon as possible. An email was then sent to Ms Monigatti which noted in the absence of an extension request or submissions being filed by 2.00pm on 30 May 2018, the matter would be listed for a non-compliance hearing on 1 June 2018.

[6] On 29 May 2018, a further voicemail message was left for Ms Monigatti. It was confirmed in a subsequent email that if no extension request or submissions were filed by 2.00pm on 30 May 2018, the matter would be listed for a non-compliance hearing on 1 June 2018. The Commission also attempted to telephone Ms Monigatti’s support person, listed on her application form, however this was unsuccessful and no voicemail message was able to be recorded. Later in the day on 29 May 2018, Ms Monigatti sent an email to the Commission advising, “I tried to return call this afternoon, but couldn’t get though I can not find any attached information that is now over due?” (sic)

[7] On 30 May 2018, the Commission telephoned Ms Monigatti, who confirmed she had received the Notice of Listing which contained the directions to file material and that she would like to continue with her matter. Ms Monigatti was advised she may send the Commission a request for an extension to file her material. Ms Monigatti was requested to keep her phone with her, as once the outcome of the extension request had been determined, the Commission would call her and advise next steps. Later that evening, Ms Monigatti sent the following:

“I apologise for late notice and missing due date I am requesting a extension as I have not replied back by the submission date, due to busy interviews for work and I lost track of the date.” (sic)

[8] On 31 May 2018, an attempt was made to telephone Ms Monigatti and a voicemail message was left advising that her request for an extension had not been granted and the matter would be listed for a non-compliance hearing the following morning. A request was made that Ms Monigatti return the Commission’s call for further information. An attempt was then made to telephone Ms Monigatti’s support person, however this was unsuccessful and no voicemail message could be left. The Notice of Listing containing details for the non-compliance hearing was then emailed to the parties.

[9] The non-compliance hearing proceeded before me on 1 June 2018. Ms Monigatti could not be contacted. Eats and Treats Cafe made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Monigatti’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Eats and Treats Cafe’s oral application. Following the non-compliance hearing, correspondence was sent to Ms Monigatti informing her of Eats and Treats Cafe’s s.399A application. Ms Monigatti was directed to file submissions and other documentary material as to why the Commission should not dismiss her application by close of business on 12 June 2018. Ms Monigatti was also directed to file material that shows she had been employed for the minimum employment period of 12 months if the business is a small business, or six months if it is not a small business.

[10] To date, Ms Monigatti has not filed any material with the Commission.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Apart from initially filing her application and requesting an extension to file her material, Ms Monigatti has shown no willingness to prosecute her case and has provided no explanation her non-attendance at the non-compliance hearing on 1 June 2018. She has also provided no material evidencing she has served the minimum employment period required under the Act. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Ms Monigatti’s application. An order giving effect to this decision will be issued concurrently.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR608662>