Mrs Fiona Thomas v Australian Health and Nutrition Association Limited T/A Sanitarium Health and Wellbeing Company

[2015] FWC 6378

[2015] FWC 6378

FAIR WORK COMMISSION

DECISION

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

Mrs Fiona Thomas
v
Australian Health & Nutrition Association Limited T/A Sanitarium Health & Wellbeing Company
(U2015/5600)

DEPUTY PRESIDENT BULL SYDNEY, 22 SEPTEMBER 2015

Application for relief from unfair dismissal, applicant failed to attend hearing, lack of response from applicant in relation to absence of hearing, non- compliance with directions, application dismissed

[1] On 27 May 2015, Ms Fiona Thomas (the applicant) made an application for a remedy in relation to an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application names Australian Health & Nutrition Association Limited as the respondent.

[2] The application was listed for a jurisdiction hearing on 9 September 2015, as it had been filed outside of the 21 day time frame as per s.394(2)(a) of the Act. The applicant failed to appear at the hearing.

Background

[3] On 29 May 2015, the applicant was advised by Senior Deputy President Drake, in writing that the application lodged was outside of the requisite 21 day time frame, with the date of dismissal being 23 April 2015, and the date of lodgement being 27 May 2015. The applicant was requested to provide written submissions in seeking an extension of time for filing the application.

[4] Submissions were received from the applicant and the respondent in relation to the applicant’s request for the extension of time. The matter was subsequently referred to this chamber for determination.

[5] The matter was originally listed before the Commission on 26 August 2015, with a Notice of Listing sent to parties on 24 July 2015. On 28 July 2015, the respondent sought to have the matter adjourned to a later date.

[6] The applicant was subsequently contacted by my chambers on the same day requesting that the applicant advise the Commission of her consent to the request for adjournment sought by the respondent, and of her availability to attend future listings.

[7] An email from the applicant was received on 29 July 2015, stating that Ms Thomas consented to the adjournment and that there were no dates which she was unable to attend for a later hearing date.

[8] An amended Notice of Listing was sent out to parties via email on 29 July 2015, confirming that the matter had been relisted for jurisdictional hearing on 9 September 2015.

[9] The applicant did not attend on the day of the 9 September 2015 hearing. Ms Bowe, legal representative for the respondent, and Ms Tuckwell, People and Culture Operations Manager for the respondent attended.

[10] Thereafter, my associate telephoned the applicant several times unsuccessfully, leaving voice messages which advised that the matter was due before the Commission, and requesting Ms Thomas to contact to the Commission in the first instance.

[11] At 11.52am that day, an email was sent to the applicant requesting an urgent response with respect to the absence in the proceedings. The email requested that the applicant respond by close of business 10 September 2015.

[12] No response to this correspondence was received, nor did the applicant otherwise contact the Commission.

[13] Consequently on 14 September 2015 a further email was sent to the applicant directing the applicant to urgently respond to the Commission. The email stated that if a written response was not received by 18 September 2015, the Commission would take the lack of response as demonstrating that the applicant did not want to continue with her application and consequently her application may be dismissed pursuant to s.587 of the Act.

[14] As at the date of this decision the applicant has not responded as directed by the Commission nor has she otherwise contacted the Commission regarding her application.

Relevant legislation
[15] Section 577 of the Act obliges the Commission to perform in a manner that is expeditious and fair:

“Performance of functions etc. by the FWC

                   The FWC must perform its functions and exercise its powers in a manner that:

   (a)  is fair and just; and

   (b)  is quick, informal and avoids unnecessary technicalities; and

   (c)  is open and transparent; and

   (d)  promotes harmonious and cooperative workplace relations.”

[16] Further, s.578 relevantly provides that in performing such functions or when exercising its powers under the relevant part of the Act, matters the Commission must take into account:

“Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

   (a)  the objects of this Act, and any objects of the part of this Act; and

   (b)  equity, good conscience and the merits of the matter; and

(c)  the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

[17] Applications for an unfair dismissal remedy, s.394 falls under Part 3-2 Unfair Dismissal of the Act. The Objects of Part 3-2 Unfair Dismissal are prescribed in s.381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[18] Section 587 (3) of the Act empowers the Commission to dismiss an application on its own initiative.

Conclusion

[19] In this matter, the applicant failed to attend a hearing which was initiated at her request in relation to an extension of time for the originating application for an unfair dismissal remedy. Subsequently, the applicant has failed to comply with the Commission’s repeated written directions requesting advice of her absence at the 9 September 2015 hearing.

[20] On 14 September 2015, the applicant was put on notice that a failure to respond to the Commission’s email may constitute grounds for non-compliance and therefore would form grounds for the application to be dismissed.

[21] Given that the applicant has been given a number of instances in which to respond and make contact with the Commission, in these circumstances, the applicant has been afforded a ‘fair go’ 1 in light of the objects as prescribed in s.381 of the Act.

[22] A ‘fair go’ must also be afforded to the respondent, in that the employer is entitled to adequately ascertain whether the applicant is pursuing a claim against them, and not be expected to waste their time and resources if the applicant is not intending to proceed with their claim. In this instance, the respondent had attended and attained legal representation, only to find the applicant absent from the hearing.

[23] Ms Thomas has been given notice of the Commission’s intention to dismiss the application if there were to be a lack of response, and has been given opportunities to respond. No response or contact has been received by the applicant to date.

[24] I am satisfied that the applicant has had an adequate and reasonable opportunity to be heard on the matters and has been afforded procedural fairness.

[25] Pursuant to s.587 (3) of the Act, the application is dismissed.

DEPUTY PRESIDENT

 1   See also re Loty and Holloway v Australian Workers’ Union [1971] AR (NSE) 95 regarding “fair go all round”.

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