Mrs Toscha Anastasi v Banchot Pty Ltd & Kariba (Qld) Pty Ltd T/A Northern Star Truck and Trailer Repairs
[2014] FWC 2862
•1 MAY 2014
[2014] FWC 2862 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Toscha Anastasi
v
Banchot Pty Ltd & Kariba (QLD) Pty Ltd T/A Northern Star Truck and Trailer Repairs
(U2014/3875)
COMMISSIONER SPENCER | BRISBANE, 1 MAY 2014 |
Application for relief from unfair dismissal.
[1] This decision relates to an application, filed on 17 January 2014, by Mrs Toscha Anastasi (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that the termination of her employment from Banchot Pty Ltd & Kariba (QLD) Pty Ltd T/A Northern Star Truck and Trailer Repairs (the Respondent) was harsh, unjust or unreasonable (the application).
[2] The Respondent filed a Form F3 Employer’s Response to Application for Unfair Dismissal Remedy in response to the application, on 12 February 2014. The Respondent sought to raise two jurisdictional objections to the application, on the basis that the application was filed outside the 21 day time limit, pursuant to s.394(2)(a), and that no further period had been granted by the Commission, pursuant to s.394(2)(b) of the Act, and that the dismissal was otherwise a case of genuine redundancy.
Background
[3] The Applicant was employed by the Respondent as the “Office Manager/Accounts”, and had been so since August 2011.
[4] The Respondent submitted, by way of its Form F3 Employer’s Response, that the Respondent had dismissed the Applicant on the basis that the Respondent had taken ownership of the business in February 2014 and that the functions performed by the Applicant would, following the change in ownership, be performed by the new owners’ wife. The Respondent stated that the Applicant was advised of this in “late November 2013”.
[5] The Applicant submitted, in her originating application, that she was dismissed from her employment on 20 December 2013. There is no dispute between the parties that this is the date the dismissal of the Applicant took effect. The application was filed on 17 January 2014, 27 days after the date the dismissal took effect.
[6] The matter was listed for Mention/Conciliation before a Fair Work Commission Conciliator on Monday, 10 March 2014, by telephone. The Commission sent a reminder of this time, by text message, to all parties on Friday, 7 March 2014. At the time of the listing the Conciliator contacted the Applicant who advised that she thought the listing was at 1.15pm NSW time and not 2.15pm. The conciliation did not proceed because the Applicant advised she could not participate.
[7] The Commission’s records reflect that the matter was originally listed for 2.15pm NSW time but that this listing was amended, on 11 February 2014, to 1.15pm NSW time. This amended notice of listing was sent to the Applicant’s email address as provided on the originating F2 application. The Commission had also received two emails from the Applicant previously, sent from this address.
[8] The matter came before the Commission as presently constituted to determine the Respondent’s jurisdictional objections.
[9] The Commission listed the matter for Friday, 4 April 2014. The notice of listing was sent by email, and post, to the Applicant on 20 March 2014.
[10] On 3 April 2014, at 8:36pm, the Commission received the following email from the Applicant:
“Good Evening,
I found this in my junk folder tonight after receiving a letter in the post today about the telephone conference tomorrow at 11am QLD time. I am happy to continue and my contact number is XXXXX XXXX. Please confirm if this still good to proceed.”
[11] At 9:02 am, Chambers responded to the Applicant, by email, confirming that the matter will proceed as listed.
[12] At the time for the conference, several attempts were made to contact the applicant on the telephone number provided in her email of 3 April 2014. A file note was made in the Commission’s file as follows:
“Called Applicant mobile. No answer for 11am conference. Left two messages, one asking for urgent return call with warning that application may be dismissed for failure to appear, second advising that s.399A application had been verbally made by Respondent rep and that Commissioner is now considering dismissing the application.”
[13] Following the Applicant’s failure to appear at the listing of 4 April 2014, the following correspondence was sent to the Applicant, also on 4 April 2014:
“Dear Ms Anastasi,
I refer to the teleconference listed for 11am this morning before Commissioner Spencer. You have failed to appear at the teleconference. I confirm that a number of attempts were made to contact you on the telephone number provided, and two messages were left regarding the matter.
The Respondent has made an application to have your application dismissed for failure to appear. I refer you to s.399A of the Act:
FAIR WORK ACT 2009 - SECT 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.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).
(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.
In considering whether to dismiss your application, the Commission provides you with a final opportunity to provide any reasons for your failure to appear at the conference of today’s date. Any such reasons, and supporting evidence, must be provided by no later than close of business on Wednesday, 9 April 2014. If no response is received the Commissioner will consider the application to dismiss on the basis of the material presently before the Commission and may dismiss your application.”
[14] At midday on 4 April 2014, one hour after the original listing time, the Applicant telephoned chambers. The following file note was made on the file:
“Applicant called Chambers. Returned Applicants call. She advised she was not available for the conference because she was at work. I confirmed that the s.399A application had been made and that the Commissioner is considering that application. Advised email and letter sent. Applicant advised she had moved, I confirmed that she has not notified the Commission of that in writing. I directed the Applicant to her email and her junk email and advised she was required to respond to the s.399A application in writing.”
[15] On Wednesday, 9 April 2014 the Applicant sent the following correspondence to chambers:
“Good Afternoon Nate Burke,
I wanted to advise you that I was unable to attend to the conference due to work commitments. I moved from QLD to NSW due to being unable to gain employment on the North Side of Brisbane after being let go from Northern Star Truck & Trailer repairs after over 2yrs of employment for no reason.
I am employed on a casual basis with Centre Pharmacy Kootingal and I was called into work on that Friday. I was going to try to still participate in the conference however due to the type of work I do, I was unable to answer the phone call. I have to take what work I can get to support my family as I am a single mother with two school aged children.
I still wish to pursue this matter, as what Northern Star did was unacceptable and I would like the remaining amount of pay that I am entitled to.
If you could please advise another time for a conference as soon as possible as to be able to sort this matter out. Please be advised that my new address is XXXXX XXXXX XXXX”
Legislation
[16] The Respondent has applied for the application to be dismissed pursuant to s.399A of the Act, which provides:
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.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(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.
[17] The Commission also has general powers to dismiss an application pursuant to s.587 of the Act which 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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
Consideration
[18] The Respondent has applied for the Commission to dismiss the Applicant’s application pursuant to s.399A(1)(a) of the Act.
[19] The Applicant has failed to attend two conferences before the Commission. I have not taken into account the failure to attend the conference before the Commission Conciliator as an unreasonable failure to attend a conference. I have however taken the failure to attend into account in assessing whether the failure to attend the conference on 4 April 2014, was unreasonable.
[20] I discern from the Applicant’s response to the application to dismiss that there is one reason for the failure to attend the conference of 4 April 2014: that the Applicant was at work.
[21] A notice of listing was issued on 20 March 2014, notifying the parties of the listed conference before the Commission. The Applicant’s correspondence indicates that the posted listing that was sent to the Applicant was sent to the Applicant’s previous Queensland address. The notice of listing was, eventually, received by the Applicant and was what prompted the email of 3 April 2014. The Applicant’s email of 3 April 2014 indicates that the emailed notice of listing was received, but was sent, by her email server, to a junk email folder.
[22] The Applicant’s email of 9 April 2014 indicates that the Applicant was “called in” to work on 4 April 2014, the day of the listing. The Applicant has not given evidence as to when she received notification or the request from her employer to attend work on the 4th.
[23] However, the email of 3 April 2014, from the Applicant, notified the Commission that she was ready and able to attend the conference, and that she requested confirmation that the conference was proceeding. The Commission provided this confirmation at the first opportunity after receipt of the email (the email was received after hours, on the day before the conference). It is noted that the notice of listing contained specific instructions for a party who wished to apply for an adjournment of the listing. The Applicant chose not to apply for an adjournment.
[24] While the Commission understands the need to work and earn income, the Applicant has an obligation to prosecute her claim in an efficient manner.
[25] I also note that following the unsuccessful initial conciliation conference, the Commission sent to the parties an email referring the matter for arbitration by a Member of the Commission. That email specifically stated:
“Also, it is critically important that you advise the Commission of any changes to your address or other contact details.”
[26] There is no record on the Commission’s file to indicate that the Applicant advised Chambers of any change of address.
Conclusion
[27] The Applicant has failed to attend a conference conducted by the Commission relating to this application.
[28] The Applicant has provided one reason for failing to attend the conference.
[29] The Commission is satisfied on the basis of the material presently before the Commission, on the balance of probabilities, that the Applicant has unreasonably failed to attend the conference of 4 April 2014.
[30] The Applicant’s failure to attend is unreasonable, taking into account the previous failure to attend by the Applicant, the fact that the Applicant confirmed her appearance and attendance at the conference a little over 12 hours before, the fact that the Respondent has had to prepare for two conferences which did not proceed. In addition, weight has been attributed to the Applicant’s failure to maintain her contact details with the Commission, which a reasonable person ought to consider, would be important for the Commission to communicate such matters to the Applicant.
[31] I also note that the Applicant’s reasons for failing to file the application within time, which were stated on the Form F2 Application to be “[D]ue to Christmas and New Years. Plus I was extremely sick in hospital on Christmas day due to the stress of being dismissed without notice” were unlikely to be found to be “exceptional circumstances”. There were likely to be no reasonable prospects of success in relation to the extension of time question and the matter would not have proceeded to a merits determination. However, given that the Applicant has not been heard on this issue it has not been taken into account in considering the application pursuant to s.399A of the Act.
[32] The application, filed pursuant to s.394 of the Act, is dismissed pursuant to s.399A(1)(a) of the Act for the aforementioned reasons.
[33] I Order accordingly.
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