Miss Carly Jensen v The Ba Pe Medical Service Trust T/A Mandalay Medical Centre

[2018] FWC 7266

[2018] FWC 7266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Carly Jensen
v
The Ba Pe Medical Service Trust T/A Mandalay Medical Centre
(U2018/5480)

COMMISSIONER HUNT BRISBANE, 30 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 28 May 2018 Ms Carly Jensen made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Jensen in her application alleged that her employment had been terminated by The Ba Pe Medical Service Trust T/A Mandalay Medical Centre on 28 May 2018.

[2] On 31 May 2018 a notice of listing was issued to the parties from the Fair Work Commission (the Commission) informing them that a conciliation of this matter before a Conciliator of the Commission would be conducted by telephone on 26 June 2018.

[3] On 21 June 2018 an employee of the Commission attempted to contact Ms Jensen at the phone number nominated in her application form to confirm her appropriate contact phone number for the listed Conciliation. The Commission’s employee was unable to contact Ms Jensen by phone and was not presented with the option to leave a voicemail message.

[4] Further on 21 June 2018 a letter was sent to Ms Jensen’s nominated address for service informing her of the listed Conciliation and requesting that Ms Jensen confirm her preferred contact number for the listed Conciliation.

[5] On 26 June 2018 the Commission’s Conciliator attempted to contact Ms Jensen at her nominated phone number for the listed Conciliation. The Conciliator was unable to contact Ms Jensen at nominated phone number and was not presented with the option to leave a voicemail message. The Conciliator sent an email to Ms Jensen’s nominated email address requesting that she contact the Conciliator urgently for the listed Conciliation. Ms Jensen did not contact the Conciliator and did not participate in the Conciliation.

[6] On 9 July 2018 this matter was allocated to me for determination.

[7] On 18 July 2018 a notice of listing was issued from my chambers to the parties informing them of a Directions Conference to be conducted by telephone on 25 July 2018, for directions to be set for the further progress of this matter. It was requested that the parties confirm to my chambers by email the appropriate contact phone numbers for the persons seeking to participate in the Directions Conference.

[8] On 24 July 2018 my Associate twice attempted to contact Ms Jensen by phone to confirm her contact phone number for the listed Directions Conference. My Associate was not presented with the option to leave a voicemail message on either attempt to contact Ms Jensen. Further to the attempted contact by phone, my Associate wrote to Ms Jensen at her nominated email address and requested that Ms Jensen confirm her contact phone number as a matter of urgency.

[9] On 25 July 2018 my Associate attempted to contact the parties by phone for the listed Directions Conference. My Associate was unable to contact Ms Jensen at her nominated phone number for the listed Directions Conference.

[10] Further, on 25 July 2018 my Associate wrote to Ms Jensen at her nominated email address and address for service and requested that Ms Jensen urgently contact my chambers to discuss her application. My Associate asked that Ms Jensen provide a response by no later than “4:00pm, Friday, 3 July 2018”, failing which her application may be dismissed.

[11] No correspondence was received in chambers from Ms Jensen in response to the correspondence of 25 July 2018.

[12] This matter was held in my chambers until 22 November 2018. On 22 November 2018, my Associate attempted to contact Ms Jensen at her nominated phone number. My Associate was unable to reach Ms Jensen by phone, but was able to leave a voicemail message for Ms Jensen. My Associate left a message for Ms Jensen providing the contact phone number for my chambers and requesting that she contact my chambers urgently in respect of the present application.

[13] Further, on 22 November 2018 my Associate sent an email to Ms Jensen’s nominated email address and requested that she urgently contact my chambers to discuss her application. My Associate informed Ms Jensen that if nothing was heard from her by “4:00PM AEST Monday, 26 November 2018”, her application may be dismissed.

[14] No correspondence was received from Ms Jensen to my chambers following my Associate’s attempts to contact Ms Jensen of 22 November 2018.

[15] On 27 November 2018 my Associate made a further attempt to contact Ms Jensen at her nominated phone number but was unable to do so. My Associate again left a voicemail message providing the contact phone number for my chambers and requesting that Ms Jensen urgently contact my chambers to discuss her application.

[16] To date, my chambers has not received any contact from Ms Jensen through any medium. In fact, it appears that Ms Jensen has not corresponded with the Commission in any capacity since lodging her application on 28 May 2018.

[17] 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.

.... 

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.’

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Despite numerous opportunities and contact from my chambers and from the Commission more generally, Ms Jensen has failed to participate in any listed proceeding or take any steps to prosecute her application at all.

[19] Ms Jensen has shown no willingness to prosecute her case. She has provided no explanation for her failure to participate in listed proceedings before the Commission in relation to her application or to contact the Commission despite continued attempts to confirm Ms Jensen’s appropriate contact details and confirm whether she wishes to prosecute her application.

[20] I find Ms Jensen’s failure to participate in the listed Conciliation and Directions Conference of this matter and her failure to respond to the Commission’s attempts to contact her over the course of this matter to be unreasonable.

[21] In these circumstances, I will exercise my discretion and dismiss Ms Jensen’s application.

[22] Ms Jensen’s application is dismissed.

COMMISSIONER

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