Miss Rachel Taylor v BHP Billiton T/A BHP

[2018] FWC 3316

[2018] FWC 3316

FAIR WORK COMMISSION

DECISION

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

Miss Rachel Taylor
v
BHP Billiton T/A BHP
(U2018/2771)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 7 JUNE 2018

Application for an unfair dismissal remedy

[1] On 17 March 2018 Ms Rachel Taylor (the applicant) made an application dated 15 March 2018 to the Fair Work Commission (the Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act). Ms Taylor claims that her employment had been terminated by BHP Billiton (the respondent employer) on 22 February 2018 with the dismissal taking effect from that day.

[2] Ms Taylor’s application was incomplete. By email dated 19 March and letter dated 21 March the Commission registry drew Ms Taylor’s attention to the incomplete nature of her application and requested that she re-file in a complete manner. By email dated 4 April 2018 the applicant re-filed a complete application.

[3] The respondent employer filed a response in the Commission on 12 April 2018 contesting the application.

[4] By letter dated 9 April the Commission registry drew to Ms Taylor’s attention that her application filed on 17 March 2018 was not filed within 21 days of the alleged dismissal, and that an extension of time would need to be sought and granted for the application to proceed.

[5] The application was listed for conciliation before a Commission-appointed conciliator on 26 April 2018. The applicant and the respondent employer were advised of the conciliation by letter dated 10 April 2018. Despite an extension of time being required, the respondent employer (on 16 April) advised the Commission that it would agree to the conciliation proceeding. The applicant and the respondent employer were reminded of the conciliation by letter dated 20 April 2018.

[6] The conciliation did not occur on 26 April 2018 due to the applicant, that morning, advising the Commission by email that she would be seeking advice and was not fit to participate.

[7] The Commission re-listed the conciliation for 4 May 2018. The Commission advised the applicant and the respondent employer of the re-listed conciliation by letter dated 1 May.

[8] The conciliation did not occur on 1 May 2018 due to the applicant not being present. The Commission received no prior forewarning of or subsequent advice explaining her non-attendance.

[9] By letter dated 4 May 2018 the Commission-appointed conciliator advised the applicant that her application would be referred to a member of the Commission for determination if the conciliator did not hear from her within 48 hours. No response was received from the applicant, within this time-frame or otherwise.

[10] By letter dated 9 May 2018 the Commission informed the applicant that her application had been referred to a member for determination, that she would be required to comply with all directions of the Commission and invited the applicant to contact the Commission to confirm her contact details. No response was received from the applicant.

[11] By letter dated 15 May 2018 the Commission informed the applicant and the respondent employer that the application had been referred to myself for determination, that the issue of an extension of time had been set down for hearing on 1 June 2018 and that directions had been issued by the Commission requiring the applicant to file materials in support of an application for an extension of time by 23 May 2018, with the respondent employer entitled to file materials in reply by 30 May 2018. A notice of listing dated 15 May 2018 was sent by the Commission to both the applicant and the respondent employer.

[12] No response was received from the applicant. No materials were filed by the applicant despite the Commission’s directions that she do so. Further reminders were sent to the applicant by email from my associate on 23 May 2018 and 24 May 2018. They too were unresponded.

[13] The employer filed materials opposing an extension of time on 30 May 2018.

[14] By email dated 28 May 2018 my associate, at my direction, wrote to the applicant drawing her attention to her apparent non-compliance with the Commission’s directions in the following terms:

“If no submissions are received from you, without sufficient explanation, or if you do not participate in the Hearing on Friday 1 June 2018, your application may be dismissed, at the discretion of the Deputy President, without further notice.”

[15] No response was received from the applicant.

[16] The hearing on 1 June 2018 proceeded. No appearance was made by the applicant. The respondent employer appeared. In advance of the hearing my associate sought to contact the applicant by telephone. A female person answered the applicant’s phone number. My associate advised that the Fair Work Commission was seeking the attendance of the applicant. My associate was advised that the applicant was not contactable as she was not home and had left her phone home that day.

[17] At the 1 June hearing, I outlined to the respondent employer the chronology of the application as it appeared from the Commission file. The respondent employer indicated that it intended to make an application dismissing Ms Taylor’s application given her non-attendance and non-responsiveness. I adjourned proceedings to 6 June 2018 to allow for Ms Taylor to have a further opportunity to attend proceedings, to explain her non-attendance and non-compliance with my directions, and to enable the employer to make any such application as it may be advised.

[18] The Commission sent a notice of re-listing to the applicant and to the respondent employer dated 1 June 2018. The notice of re-listing provided as follows:

“PLEASE NOTE: No appearance was made by the Applicant at the proceedings of 1 June 2018. The Applicant is at risk of the matter being dismissed by the Fair Work Commission for want of prosecution.”

[19] On 4 June 2018 the respondent employer made a written application pursuant to section 399A seeking the dismissal of the application on the grounds that Ms Taylor 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 4 June 2018.

[20] Proceedings resumed in the Commission on 6 June 2018. The respondent employer appeared. No appearance was made by the applicant or any person on behalf of the applicant. Calls by my associate to her telephone were this time unresponsive.

[21] I advised those attending the hearing on 6 June that the Commission had received the respondent employer’s section 399A application. In the circumstances I considered it appropriate to waive compliance with the Fair Work Commission Rules 2013 to the extent necessary to deal with the 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 4 June. I advised at the hearing, nor has the Commission. At the conclusion of proceedings I reserved my decision.

[22] It is apparent from the aforementioned summary, that the applicant has failed to comply with directions made by the Commission on 15 May 2018 and has failed to appear in support of her application at hearings on 1 and 6 June 2018. Further, the applicant has not responded to any communication from the Commission since her communication with the conciliator on 26 April requesting that the conciliation conference not proceed that day.

[23] 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.

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

[25] The power to dismiss an application if non-attendance or non-compliance was unreasonable is discretionary. Ms Taylor has failed to comply with Commission directions and attend multiple hearings on her application despite prior notice and numerous attempts by the Commission to contact her. She has shown no willingness to prosecute her claim once it has been referred for determination and has provided no explanation to the Commission for either her failure to comply with directions or her failure to attend the hearings. In these circumstances, I am persuaded that I should exercise my discretion under section 399A of the FW Act and dismiss Ms Taylor’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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