Miss Renae Hallewell v Kidsafe Act

[2021] FWC 6257

[2021] FWC 6257

FAIR WORK COMMISSION

DECISION

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

Miss Renae Hallewell
v
Kidsafe ACT
(U2021/7391)

COMMISSIONER RIORDAN SYDNEY, 3 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] Miss Renae Hallewell (the Applicant) lodged an unfair dismissal application (the Application) pursuant to s.394 of the Fair Work Act 2009 (the Act) on 19 August 2021 claiming that she was unfairly dismissed by Kidsafe ACT (the Respondent) on 6 August 2021.

[2] The matter was listed for Conciliation before a Fair Work Commission (the Commission) staff conciliator on 16 September 2021, however, was unable to proceed due to the unavailability of the Applicant. Further to correspondence from the Applicant seeking that the matter be listed for a second conciliation, the matter was listed before a staff conciliator on 14 October 2021, however, the matter did not resolve.

[3] The matter was allocated to my Chambers on 15 October 2021. A notice of listing was issued on 15 October 2021, for a Conciliation Conference to be held on 20 October 2021. The notice of listing requested that the parties confirm their attendance and contact details ahead of the listing date.

[4] On 16 October 2021, the Applicant wrote to my Chambers seeking an adjournment of the Conciliation Conference to allow her time to seek legal advice and the assistance of a lawyer in this matter.

[5] On 18 October 2021, my Associate attempted to contact the Applicant on her mobile number listed on the Application. No contact was able to be made and a voice message was left for the Applicant explaining that the matter was listed for Conference only. On the same date, my Associate sent an email to the Applicant advising that we had attempted to contact her in relation to her adjournment request, and confirming that the matter was listed for Conciliation Conference only and not a formal hearing of the matter. The correspondence provided that the Conciliation Conference would remain listed until any further response was received from the Applicant and confirmed the Chambers telephone number that the Applicant could contact, if she had any concerns.

[6] On the morning of 20 October 2021, my Associate attempted to contact the Applicant on her mobile number to confirm her appearance for the conference. The Applicant did not answer, and a voice message was left confirming that the matter would be proceeding as listed.

[7] The listing was scheduled to commence at 1:30pm AEDT on 20 October 2021. My Associate made four attempted calls to the Applicant’s mobile number between 1:28pm and 1:45pm AEDT on 20 October 2021, with three voice messages left. The Applicant was unable to be dialled into the Conference and did not return Chambers’ calls.

[8] The Respondent and its representative successfully dialled themselves into the Conference line, however, due to the Applicant’s unavailability the Conference was unable to proceed.

[9] At 2:17pm AEDT on 20 October 2021, my Chambers sent a non-attendance letter to the Applicant by email and express post, copied to the Respondent’s email address. That letter provided:

“Dear Miss Hallewell,

I refer to the Notice of Listing that was issued on 15 October 2021 to notify you that the above-mentioned matter was set down for Member Assisted Conciliation via telephone before Commissioner Riordan on 20 October 2021 at 1:30 pm AEDT.

It is noted that by email on Monday, 18 October 2021, you sent correspondence to Chambers seeking an adjournment to allow you time to seek legal advice. By return correspondence on the same date, it was confirmed to you that the matter was listed for Member Assisted Conciliation and not a formal hearing of the matter, and that the matter remained listed in accordance with the notice of listing dated 15 October 2021.

Chambers attempted to contact you this morning ahead of the listing time, however no contact was made and a voice message was left. At the time of the Member Assisted Conciliation, four attempted calls were made to your listed mobile number between 1.28pm and 1.45pm AEDT, and voice messages left for you to return my calls.

Chambers has not received a return call from you or any correspondence regarding your failure to attend, and the Member Assisted Conciliation was unable to proceed due to your failure to participate.

The Respondent was advised that on the basis of your non-attendance, the matter would be adjourned, pending contact from you to Chambers.

Please be advised that you have seven days to provide a satisfactory explanation as to why you failed to participate in the teleconference. This is formal notification that if you fail to provide a satisfactory response in writing, the Fair Work Commission may dismiss your application pursuant to section 587 of the Fair Work Act, 2009 (the Act).”

[10] The letter also invited the Applicant to contact Chambers’ telephone number, to discuss the matter further.

[11] The Applicant sent reply correspondence to my Chambers, by email, at 2:19pm AEDT on 20 October 2021, stating:

“The conciliation wasn't supposed to start until 2.30. It is currently only 2.18, how has it been missed?

Get Outlook for Android”

[12] My Associate immediately attempted to contact the Applicant on her listed mobile number, however, the Applicant did not answer and a voice message was left seeking a return call. My Chambers sent correspondence to the Applicant following that attempted call, as follows:

“Good afternoon Ms Hallewell,

I have attempted to call your mobile number just now however I was unable to get through. Could you please advise if an alternative number is more suitable?

I note that the notice of listing provided for 1.30pm AEDT / NSW Time. Accordingly, it was listed at 1.30pm NSW time which has now passed.

Could you please contact Chambers at your earliest convenience on the below number?”

[13] The Applicant did not provide any further response, either by email or by way of telephone conversation. The Applicant has also not provided any formal response or reasons for her failure to attend the Conciliation Conference as required by the non-attendance letter.

[14] Section 587(1) of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[15] In the circumstances, I have decided to dismiss the application for want of prosecution.

[16] I so Order.

COMMISSIONER

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