Miss Rebecca Taggart v Red Energy

[2017] FWC 6339

[2017] FWC 6339

FAIR WORK COMMISSION

DECISION

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

Miss Rebecca Taggart
v
Red Energy
(U2017/9125)

COMMISSIONER BISSETT MELBOURNE, 1 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 22 August 2017, Miss Rebecca Taggart made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Taggart said she was notified of her dismissal on 16 August 2017, with it taking effect on 17 August 2017.

[2] The matter was initially listed for conciliation on 15 September 2017, however following an adjournment request from Red Energy, which was granted, conciliation was re-listed for 22 September 2017. Miss Taggart then sought an adjournment, which was also granted, and the matter was re-listed for 25 September 2017. The matter did not resolve at conciliation and directions were then issued for the filing of material. Miss Taggart was directed to file an outline of submissions, any witness statements and other documentary material by no later than noon on 16 October 2017.

[3] On 28 September 2017, parties were sent a Notice of Listing which confirmed the dates material was due and that the Arbitration Conference/Hearing was scheduled for 4 December to 6 December 2017.

[4] On 2 October 2017, the legal representative for Red Energy sought an adjournment of the hearing dates to a date after 11 December 2017, which was opposed by Miss Taggart. On 13 October 2017, the Fair Work Commission sent correspondence to the parties asking if they were amenable to changing the hearing dates to the week of 20 November 2017. Red Energy advised they were not available in that week. Ultimately, there was no change made to the hearing dates.

[5] As no material had been received, on 17 October 2017 the Commission telephoned Miss Taggart regarding the status of her material. She advised she had not attended to her submissions as she was unsure whether the hearing date would be changed. Miss Taggart said she would send a request for an extension of time to file her material.

[6] On 18 October 2017, email correspondence was sent to Miss Taggart which noted that if no extension request or submissions were received by 4.00pm that day, the matter would be listed for a non-compliance hearing on 20 October 2017. On the same day, an SMS message was sent to Miss Taggart requesting a return call as soon as possible. An attempt to telephone Miss Taggart was also made, however this was unsuccessful and no voicemail message was able to be left.

[7] On 19 October 2017, a further telephone call was made to Miss Taggart and a voicemail message was left which noted that the matter would be listed for non-compliance hearing if no correspondence was received by 1.00pm that day.

[8] The non-compliance hearing proceeded before Deputy President Clancy on 20 October 2017. Three attempts were made to telephone Miss Taggart, however she could not be contacted. Red Energy made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Miss Taggart had failed to comply with a direction of the Commission. Deputy President Clancy waived compliance with the Fair Work Commission Rules 2013 and accepted Red Energy’s oral application. Correspondence was then sent to Miss Taggart, informing her of Red Energy’s s.399A application. Miss Taggart was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 27 October 2017.

[9] On 29 October 2017, Miss Taggart sent email correspondence to the Commission and said:

“I would like to go ahead with the application. 

I apologize for my delayed response. I have been overseas however and not in the country.”

[10] On 15 November 2017, I caused email correspondence to be sent to the parties which noted that while Miss Taggart may have been overseas, this does not explain why she failed to comply with the directions issued and that Miss Taggart had not provided any documentary evidence (eg ticketing information/boarding passes) which demonstrated she was in fact overseas and that she was away for the period in question. Miss Taggart was given a further opportunity to file submissions and evidence as to why she failed to comply with the Commission’s directions to file her submissions and evidence by 16 October 2017. Miss Taggart was required to provide her response by 4.00pm on 22 November 2017. It was noted that Red Energy would have until 4.00pm on 29 November 2017 to provide any submissions in reply.

[11] To date, Miss Taggart has not filed any material with the Commission.

[12] On 28 November 2017, Red Energy sent email correspondence to the Commission, confirming it pressed its s.399A application.

[13] 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.

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

[15] As Miss Taggart did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Taggart has been contacted on multiple occasions, via methods including telephone, SMS message and email regarding her outstanding material. Despite her email of 29 October 2017 advising she wished to proceed with her application, she did not address Red Energy’s s.399A application, as she was directed to do in the correspondence of 20 October 2017. Miss Taggart was then given a further opportunity to file submissions and evidence as to why she failed to comply with the Commission’s directions to file her submissions by 16 October 2017. There was no response to this correspondence. Miss Taggart has provided no explanation for either her failure to comply with directions or her non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Miss Taggart’s application.

[17] An order giving effect to this decision will be issued today.

COMMISSIONER

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