Mrs Lovene Kake v DB Schenker T/A DB Schenker

[2019] FWC 5460

[2019] FWC 5460

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mrs Lovene Kake
v
DB Schenker T/A DB Schenker
(U2019/4636)

DEPUTY PRESIDENT ASBURY BRISBANE, 19 AUGUST 2019

Application for an unfair dismissal remedy.

[1] In an Order 1 issued on 26 July 2019, I ordered that an application made by Mrs Lovene Kake (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her alleged dismissal by DB Schenker T/A DB Schenker (the Respondent) be dismissed. This Decision sets out my reasons for dismissing the application.

[2] The application was filed in the Commission on 24 April 2019. In its Form F3 Employer Response Form the Respondent raised a jurisdictional objection to the application asserting that it did not employ the Applicant and that she was employed by Labourpower Recruitment Services, a supplier of labour resources to a number of businesses including the Respondent which placed her temporarily with the Respondent. The Respondent also asserts that it is not a related entity of Labourpower recruitment services.

[3] The matter was listed for telephone conciliation on 4 June 2019 before a Fair Work Commission Conciliator. The Conciliator was unable to contact the Applicant and the conciliation did not take place. The Conciliator’s notes on the file indicate that he made several attempts to call the Applicant and that when the Applicant answered and the Conciliator explained who he was, the Applicant disconnected from the call.

[4] Correspondence was sent from my Chambers on 18 June 2019 by email to the address notified by the Applicant in her Form F2 Application, advising that the matter had been allocated to me and that a conference would be listed at 3.00pm on 26 June 2019 to discuss the Respondent’s jurisdictional objection. A notice of listing was issued to the parties that day also by email, stating that the listing was definite, and that any requests for an adjournment were to be made in writing in a timely manner and based on substantial grounds. The notice of listing also contained an instruction that the parties were to confirm their telephone contact numbers for participation in the conference by no later than 24 June 2019. The Applicant did not confirm her contact telephone number for the conference as required.

[5] At 10.54am on 26 June 2019 my Associate sent email correspondence to the Applicant requesting she confirm a telephone contact number for the conference that afternoon. The Applicant did not respond. My Associate called the Applicant at the time of the conference using the telephone number she had provided on her application. When Ms Kake answered the phone she advised my Associate that she was busy as it was her daughter’s birthday. My Associate told the Applicant that the matter had been listed since 18 June 2019 and correspondence had been sent to her email address on that date. The Applicant advised my Associate that she had been in New Zealand and then disconnected from the call.

[6] My Associate made several attempts to call the Applicant again however the calls went to the Applicant’s voicemail. I instructed my Associate to advise the Applicant in a voicemail message that she was to return the telephone call, and that if she failed to do so her application may be dismissed without further notice. The Applicant did not return those calls and the conference did not proceed. The Applicant did not contact my Chambers on subsequent days to explain her failure to comply with requests for her to return telephone calls.

[7] On 28 June 2019 the Respondent filed an application seeks the Applicant’s unfair dismissal application be dismissed pursuant to s. 399A and s. 587 of the Act. A covering email indicated that the Applicant was copied into the email filing the application by way of service. The application was made on the basis of the Applicant’s failure to attend the conciliation conference before a Fair Work Commission Conciliator on 4 June 2019 and the conference of 26 June 2019 before me. The application also stated the Applicant’s unfair dismissal application had no reasonable prospects of success as the Respondent did not employ the Applicant and the Applicant therefore was not a person protected from unfair dismissal under s.382 of the Act. Documentary evidence in support of those assertions was also provided.

[8] On 3 July 2019 I issued a Statement and Directions in relation to the Respondent’s s. 399A and s. 587 applications. The Statement and Directions set out the grounds of the Respondent’s application to have the Applicant’s unfair dismissal application dismissed and contained directions to the Applicant that by 4.00 pm on Friday 5 July 2019, the Applicant was required to take one of the following steps:

1. Send an email to [email protected] explaining her failure to comply with the Directions issued by the Commission on 18 June 2019 in relation to her attendance at the Conference on 26 June 2019 and responding to the Respondent’s application made under s.399A and s.587 of the Act; or

2. Send an email to [email protected] requesting that the Commission conduct a hearing for the purposes of giving the Applicant an opportunity to explain her failure to comply with the Directions issued by the Commission on 18 June 2019 in relation to her attendance at the Conference on 26 June 2019 and to respond to the Respondent’s made under s.399A and s.587 of the Act.

[9] The Statement and Directions also informed the Applicant that she should note that it is my provisional view that her unfair dismissal application has been made against the wrong entity and should consider her position in this regard. Further, the Applicant was informed that if she did not take one or other of the actions set out in the Statement and Directions by the required time, her unfair dismissal application may be dismissed without further notice.

[10] The Applicant did not comply with the Directions and did not otherwise make contact with my Chambers to explain her failure to prosecute her application. Accordingly, I dismissed the Applicant’s unfair dismissal application pursuant to s. 399A and s. 587 of the Act and issued an Order to that effect.

DEPUTY PRESIDENT

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