Miss Lina Abete v Flehan Brothers Pty Ltd T/A the Firm

[2018] FWC 4112

[2018] FWC 4112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Miss Lina Abete
v
Flehan Brothers Pty Ltd T/A The Firm
(U2018/4848)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 12 JULY 2018

Application for an unfair dismissal remedy

[1] This decision records and supplements the reasons for decision made by the Fair Work Commission (the Commission) at a hearing on 11 July 2018.

[2] Via her representative United Voice, on 9 May 2018 Ms Lina Abete (the Applicant) made an application to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act). Ms Abete claims that her employment had been terminated by Flehan Brothers Pty Ltd (the Respondent employer) on 20 April 2018 with the dismissal taking effect from that day.

[3] The Respondent employer filed a response in the Commission on 22 May 2018 contesting the application.

[4] The matter was listed for conciliation before a Commission-appointed conciliator on 6 June 2018. The Applicant and her representative, and the Respondent employer, were advised of the conciliation by letter dated 10 May 2018. The conciliation did not occur due to the non participation of the Applicant despite attendance by the Respondent employer and its representative.

[5] The Applicant and her representative, and the Respondent employer, were informed by letter dated 6 June 2018 that she needed to contact the Commission within two working days if she sought conciliation of her application. No communication was received from the Applicant or her representative.

[6] By email dated 12 June 2018 the Applicant’s representative advised the Commission that it no longer acted for the Applicant. It filed a Notice of Ceasing to Act on 15 June 2018.

[7] By email dated 18 June 2018 the Commission advised the Applicant and the Respondent employer that a directions hearing scheduled for 28 June 2018 would occur.

[8] The application was listed for a directions hearing before Deputy President Anderson for 28 June 2018. The Applicant and the Respondent employer were formally advised of this hearing via a Notice of Listing dated 18 June 2018.

[9] There was no appearance by the Applicant at the directions hearing at 10.00am ACST 28 June 2018. At that hearing the Respondent employer indicated that an application would be made pursuant section 399A of the FW Act that the matter be dismissed due to Miss Abete’s failure to attend conferences and hearings conducted by the Commission. I made the following directions:

1. That the matter be relisted for 4.15pm (ACST) 11 July 2018 (by telephone), noting that the Notice of Listing (together with these Directions) will be sent by the Commission to all available avenues of communication previously notified by the Applicant to the Commission;

2. That the Applicant appear in person at the resumed directions hearing by telephone on 11 July 2018;

3. That the Applicant notify in writing to the Associate to Deputy President Anderson by 5.00pm (ACST) Friday 6 July 2018 of her intention to appear at the resumed directions hearing on 11 July 2018;

4. That the Applicant provide in writing to the Associate to Deputy President Anderson by 5.00pm (ACST) Friday 6 July 2018 and copy to the Respondent employer an explanation as to her non-attendance at the directions hearing on 28 June 2018 and any supporting evidence concerning that non-attendance;

5. That the Applicant take note of the fact that at the resumed directions hearing on 11 July 2018 her application may be dealt with in her absence or otherwise including by being dismissed by the Commission for failure to attend at conferences or hearings conducted by the Commission;

6. That if the Respondent employer files an application pursuant to section 399A of the FW Act then the Respondent employer must serve that application on the Applicant in a manner required by the Fair Work Commission Rules 2013.

[10] My directions of 28 June 2018 were sent by email to both Miss Abete and the Respondent employer. They were also sent by express post to Miss Abete.

[11] On 2 July 2018 the Respondent employer made a written application pursuant to section 399A seeking the dismissal of the application on the grounds that Miss Abete had failed to comply with Commission directions and failed to attend conferences and hearings of the Commission. The Respondent employer sent the section 399A application by email to the Commission and to the Applicant on 2 July 2018.

[12] The aforementioned period for Miss Abete to write to the Commission has now expired. To date, Miss Abete has not filed any material with the Commission.

[13] The hearing on 11 July 2018 proceeded. No appearance was made by the Applicant. The Respondent employer appeared through their representative.

[14] I advised at the hearing on 11 July 2018 that the Commission had received the Respondent employer’s section 399A application. The Respondent employer made oral submissions in support of the grounds specified in its application. The Respondent employer advised that it had received no communication from the Applicant in response to serving its section 399A application on the Applicant on 2 July. I advised at the hearing, nor has the Commission. At the conclusion of proceedings I reserved my decision.

[15] Section 399A of the FW 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] I am satisfied that the Applicant has been given sufficient notice of these proceedings and of the Respondent employer’s section 399A application. I am further satisfied that it is appropriate to now determine the Respondent employer’s application.

[17] The power to dismiss an application if non-attendance or non-compliance was unreasonable is discretionary. Miss Abete has failed to attend multiple hearings on her application despite prior notice and numerous attempts by the Commission to contact her. Other than engaging a representative to lodge her application, Miss Abete has shown no willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with directions of the Commission or her failure to attend the directions hearings or non-compliance hearing.

[18] In these circumstances, I am persuaded that I should exercise my discretion under section 399A and dismiss Miss Abete’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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