Miss Louise Collins v Honey Birdette Pty Ltd
[2018] FWC 1158
•23 FEBRUARY 2018
| [2018] FWC 1158 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Louise Collins
v
Honey Birdette Pty Ltd
(U2017/13404)
| Deputy President Clancy | MELBOURNE, 23 FEBRUARY 2018 |
Application for an unfair dismissal remedy.
On 16 December 2017, Miss Louise Collins made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Collins said she was notified of her dismissal on 18 November 2017, with her dismissal taking effect on the same day.
In its Form F3 – Employer Response filed on 27 December 2017, Honey Birdette pty Ltd (Honey Birdette) objected to Miss Collins’ application on the bases that she was not dismissed and that her application was lodged out of time. The matter was listed for conciliation on 17 January 2018, however shortly after commencement Miss Collins advised the conciliator that she did not wish to proceed and requested her matter be referred for a hearing before a Member of the Fair Work Commission (the Commission).
On 29 January 2018, the parties were sent a Notice of Listing which advised the Extension of Time Conference/Hearing date and also the Requirements to file material. Miss Collins was directed to file an Outline of Argument: Extension of Time, Statement of Evidence and Document List by no later than noon on 5 February 2018.
As no material had been filed, in the afternoon of 5 February 2018 the Commission telephoned Miss Collins, however there was no answer and a voicemail message was left.
On 6 February 2018, a further voicemail message was left for Miss Collins regarding her outstanding material. Later that day, email correspondence was sent to Miss Collins which noted that no material had been received by the Commission. Miss Collins was asked to advise whether she intended to request an extension to file her submissions and was informed that in the absence of a reply, her matter may be listed for a non-compliance hearing.
On 7 February 2018, a further email was sent to Miss Collins asking her to advise when she intended to file her submissions and noting that if the Commission did not hear from her, the matter would be listed for a non-compliance hearing on 9 February 2018. On the same day, Miss Collins emailed the Commission and advised that she “had started a new job and had forgotten about the date” but would send everything through that evening. Miss Collins also enquired how she could go about taking the matter back to conciliation.
The following day, the Commission telephoned Miss Collins and advised that it had received her email correspondence of 7 February 2018 however submissions had still not been received from her. The Commission asked Miss Collins whether she intended to file her material as previously stated. Miss Collins advised that family issues had arisen and that she was currently on the way to work but confirmed she would file her material after work. Miss Collins further advised that all of her submissions had been finalised and were ready to be filed. The Commission advised Miss Collins that as she had not complied with the requirement to file her submissions, the matter would proceed to a non-compliance hearing. Later that day, a Notice of Listing was sent to the parties advising that a non-compliance hearing was listed for 12.00pm on 9 February 2018.
The non-compliance hearing proceeded before Commissioner McKinnon on 9 February 2018. The Commission made three attempts to contact Miss Collins via telephone, however these were unsuccessful. Honey Birdette made an oral application, pursuant to s.399A of the Act that the matter be dismissed as Miss Collins had failed to comply with a direction of the Commission. Commissioner McKinnon waived compliance with the Fair Work Commission Rules 2013 and accepted Honey Birdette’s oral application. Subsequently, correspondence was sent to Miss Collins, informing her of Honey Birdette’s s.399A application. Miss Collins was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 16 February 2018. Miss Collins was further advised that in the absence of a response, her application would be dismissed. This correspondence was sent to Miss Collins via email and post.
On 16 February 2018, the Commission again attempted to telephone Miss Collins, however there was no answer and a voicemail message was left advising of the direction that she file a response to the s.399A application by close of business that day.
To date, Miss Collins has not filed any material with the Commission.
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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As Miss Collins did not file any materials in opposition to the application to dismiss, I will determine the application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Collins has failed to respond to numerous attempts made by the Commission to contact her. Miss Collins has not provided persuasive explanations for her failure to comply with the directions. She has provided no explanation for her non-attendance at the non-compliance hearing and has not responded to the direction made at it requiring her to file submissions and other material. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Miss Collins’ application.
An order giving effect to this decision will be issued today.
DEPUTY PRESIDENT
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