Mrs Janine Zelinka v Woolworths Group Ltd
[2022] FWC 1318
•27 MAY 2022
| [2022] FWC 1318 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Janine Zelinka
v
Woolworths Group Ltd
(U2022/3759)
| DEPUTY PRESIDENT BELL | MELBOURNE, 27 MAY 2022 |
Application for an unfair dismissal remedy – s.399A and s.587 – application dismissed.
On 30 March 2022, Mrs Janine Zelinka (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by Woolworths Group Ltd (Respondent) on 13 March 2022. The Respondent agrees the Applicant was dismissed on 13 March 2022 but denies the dismissal was unfair. In her Form F2, Mrs Zelinka provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter.
On 9 May 2022, the file was allocated to me and, on that day, I issued directions to the parties. The directions were sent to the Applicant by her nominated email address and, among other matters, required her attendance at a mention hearing listed for 17 May 2022 at 9:30am by Microsoft Teams.
On 16 May 2022, in preparation for the scheduled mention hearing, multiple attempts were made to contact the Applicant by her telephone number to confirm her attendance. One call was answered but nobody spoke. A subsequent call resulted in a voice message being left. The Applicant left one voice message herself with my chambers, advising she was returning the calls made to her. Further calls and emails were made that day and the next morning to the Applicant to the same effect advising of the mention and seeking confirmation of her attendance. None were answered nor further return calls received by Chambers.
On 17 May 2022, the Applicant did not attend the scheduled mention hearing. The Respondent did attend, although the mention proceeded only on a limited basis given the absence of the Applicant. The Applicant listed the Respondent’s legal name as ‘Woolworths Ltd’. As the correct name was ‘Woolworths Group Limited’, I amended the name of the Respondent as recorded on the file.
On 20 May 2022, the Applicant was sent a notice of listing for a mention and non-compliance hearing, which I listed for 26 May 2022. I had also listed mention hearings on the same date and time for three other unfair dismissal applications involving the Respondent in broadly similar claims.
Later on 20 May 2022, I received in chambers an application by the Respondent - made under s.399A of the Act - for the Applicant’s application to be dismissed.
On 23 May 2022 at 9:52am, the Applicant was sent an email from chambers giving her an opportunity to respond to the Respondent’s application. The email noted:
· that she had failed to attend the mention on 17 May 2022, despite several attempts to contact her prior to the mention via both email and on the mobile number provided to the Commission in her application.
· prior to the mention, she was advised, on the Notice of Listing and in subsequent emails and voice messages, that she was required to attend the mention.
· the Commission was unable to reach her on her mobile number on the day of the mention, and had not received an explanation for her non-attendance.
Among other matters, the email also set out s.399A of the Act and attached the Respondent’s application. The email directed the Applicant to file with the Commission and serve on the respondent submissions, evidence or other documentary material in support, as to why the Commission should not dismiss her application. This material was required by no later than 4:00pm, Tuesday 24 May 2022.
No material was filed by the Applicant, nor any contact made.
On 25 May 2022, an email was sent to the Applicant further reminding her of the non-compliance hearing and mention set down for 26 May 2022. No reply was received.
On 26 May 2022, the mention and non-compliance hearing commenced. A further call was made to the Applicant on her mobile number prior to its commencement but went unanswered, and another voice message was left requesting the Applicant join the hearing. That hearing lasted about 45 minutes (noting an applicant in one of the other matters before me did attend, as did the Respondent). At no stage did the Applicant join or communicate in relation to it.
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 Mrs Zelinka did not file any material 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 is considered to have been unreasonable is discretionary. Other than initially filing her application, the Applicant has failed to actively prosecute her case and has provided no explanation to the Commission for failure to attend either the mention on 17 May 2022 or the mention/non-compliance hearing on 26 May 2022. I note she also did not attend a conciliation listed for 6 May 2022, prior to the matter being allocated to me.
I am satisfied that the Applicant has acted unreasonably in failing to attend the mention hearing on 17 May 2022, because she was advised of it, and the requirement for her to attend, in advance via the contact details she has provided and has made no response to the repeated Commission attempts to contact her. Further, I consider the Applicant has unreasonably failed to comply with my direction to respond to the s.399A application and did not afford herself of the further opportunity to explain on 26 May 2022.
Having regard to the circumstances of this matter, I have determined that I should exercise my discretion under s.399A and dismiss Ms Zelinka’s unfair dismissal application.
An Order[1] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
<PR742027>
[1] PR742028
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