Ms Belinda Rowley v Woolworths Group Limited
[2023] FWC 2600
•9 OCTOBER 2023
| [2023] FWC 2600 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Belinda Rowley
v
Woolworths Group Limited
(U2023/6710)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 9 OCTOBER 2023 |
Application for an unfair dismissal remedy – s.399A application to dismiss.
Ms Belinda Rowley has applied for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (FW Act). Ms Rowley alleges that she was unfairly dismissed from her employment with Woolworths Group Limited (Woolworths). In the application Ms Rowley incorrectly identified the employer as Big W. Woolworths pointed out the error and Ms Rowley requested in correspondence that the application be amended. I amend the application accordingly.
Woolworths opposed the application. Ms Rowley failed to attend a conciliation conference. She also failed to attend a Directions hearing. She also failed to comply with Directions issued to facilitate a hearing of her matter. She has indicated that she does not intend on attending a hearing of her matter. Woolworths applies, pursuant to s.399A of the FW Act, for Ms Rowley’s application to be dismissed.
Background
Ms Rowley’s application for an unfair dismissal remedy was lodged using the online filing service on 22 July 2023. On 16 August 2023, Woolworths filed it response to the application. The application and response indicated that the matter involved contested facts about Ms Rowley’s conduct.
The application was listed for telephone conciliation on 21 August 2023. Ms Rowley initially requested, in a brief email, an adjournment of the conciliation. No reason was given for the request. When asked to provide reasons her request for an adjournment was withdrawn.
The conciliation did not proceed on 21 August 2023 because Ms Rowley failed to attend. The conciliator wrote to Ms Rowley on that day asking for her availability to attend a further conciliation conference. No response was received.
On 25 August 2023 the Commission wrote to Ms Rowley stating the matter would be referred to a member of the Commission for arbitration. The letter notified Ms Rowley that a date for arbitration would be set and that directions would be issued for the preparation, lodging and serving of documents in support of her case. The letter informed Ms Rowley that if she failed to comply with any directions the application may be dismissed.
On 31 August 2023 the matter was allocated to my chambers for arbitration. Draft Directions were issued to the parties on 1 September 2023 and the matter was listed for a Directions hearing on 7 September 2023. Ms Rowley provided a brief email response to the listing stating that she could not attend as she was working. An email was sent to the parties on 4 September 2023 asking for availability in the following week. Woolworths responded that it was not available until 12 September 2023. Ms Rowley did not reply.
A further directions hearing was listed for 12 September 2023. Ms Rowley did not attend. Draft Directions were formulated in Ms Rowley’s absence and were provided to both parties by email. Ms Rowley was asked in the covering email if she intended to proceed with the application. Ms Rowley responded to the email on the same day stating she had started a new job, that she could provide “written directions”, but could not attend the hearing. Her email also asked if she could instead provide her evidence in letter form.
A response was sent on 13 September 2023 stating the matter would be programmed for arbitration in person on Tuesday 17 October 2023. Directions for the preparation, filing and serving of material were issued that day. The Directions were in the form earlier circulated. The first direction was that Ms Rowley file with the Commission, and provide to the Respondent, any witness statements, documents, and submissions in support of her application by no later than close of business on Thursday, 21 September 2023.
On 18 September 2023, Ms Rowley sent a short email asserting her view that there was no evidence to establish her misconduct, stating that she had a new job so would not be able to attend the hearing, and asking that the “unfair dismissal board” act on her behalf.
On 19 September 2023 the Commission sent Ms Rowley an email informing that the matter would be dealt with in accordance with the earlier Directions, that she was required to provide material on 21 September 2023 in accordance with the Directions and asking her to provide details of her inability to attend on 17 October 2023 with alternative dates when she would be able to attend. The email directed Ms Rowley to the Commission’s online resources to assist in preparing her material. Ms Rowley responded in a brief email 30 minutes later. The response was as follows:
Dear Sir/Madam,
I have just started a new job because I was dismissed by big w.
I have no leave.
I have provided my evidence.
Nothing else to provide.
I have told you my side of the story.
Sent from my iPhone
The Commission responded to Ms Rowley again informing her that she was required to follow the Directions. Ms Rowley responded shortly after, in a brief email, again asserting that she had been unfairly dismissed, the respondent had no proof that the conduct leading to the dismissal occurred, that she had already told Woolworths that she had done nothing wrong, and stating that she did not have any witness statements. It appears that Woolworths responded to Ms Rowley directly as, in the evening of 13 September 2023, Ms Rowley forwarded to the Commission a without prejudice communication from Woolworths. Ms Rowley then forwarded an email to the Commission and to Woolworths refuting the content of the without prejudice correspondence, stating that she had filed her evidence and that the Commission could now determine the matter.
The Directions required Ms Rowley to file and serve her evidence and submissions on 21 September 2023. Nothing was filed.
On 22 September 2023 Woolworths made application for the matter to be dismissed in accordance with s.399A of the Act.
On 25 September 2023, Directions were issued requiring Ms Rowley to file and serve any material in response to the application to dismiss her application. Ms Rowley responded with a brief email in the following terms:
Dear Sir/Madam,
I have told you and given all the information regarding my application.
No other evidence or witness statements.
Thanks Belinda
Sent from my iPhone
Consideration
Section 399A relevantly gives the Commission a discretion to dismiss an application for an unfair dismissal remedy if satisfied that an applicant has unreasonably failed to attend a conference or hearing in relation to the application or has failed to comply with a direction or order of the Commission relating to the application.
Woolworths submits that the Commission should be satisfied that Ms Rowley unreasonably failed to; attend the conciliation conference on 21 August 2023, attend the directions hearing on 12 September 2023, comply with the Directions of 13 September 2023, and comply with the Directions of 25 September 2023. Woolworths submits that the first two failures were unreasonable as Ms Rowley failed to provide an explanation for her non-attendance at the conference and hearing and on each occasion failed to respond to requests to provide dates on which she would be available to attend. As to the second two failures Woolworths contends that they were unreasonable as no explanation was given from Ms Rowley about her failure to comply with Directions.
I agree with Woolworths that Ms Rowley’s failure to attend a conciliation and directions hearing was unreasonable. On each occasion, Ms Rowley was invited to provide alternate dates but failed to do so. As to the failure to comply Directions, Ms Rowley’s response provided some explanation for non-compliance by insisting in her brief emails that she had no witness statements, had already provided material, and wished the matters to be determined on material already provided. The explanation however was inadequate and not accepted. Ms Rowley was reminded on a number of occasions that she was to conduct her case in accordance with the Commission’s Directions. She declined to do so. It appears she preferred to conduct her case on the basis of assertions made in brief emails. It was unreasonable for her to do so.
Having found that Ms Rowley has unreasonably failed to attend the Commission and unreasonably failed to comply with the Directions on 13 and 25 September 2023 I have a discretion to dismiss the application. I propose to do so. In exercising that discretion I take into account the opportunities afforded to Ms Rowley in the various communications set out above, which asked that she engage in conferences, hearings, comply with the Directions, and explained how she could do so. I also take into account that Ms Rowley’s application involves contested facts and s.397 of the Act requires the Commission to conduct a conference or hold a hearing where facts are disputed. Further, not only has Ms Rowley failed to attend conferences and hearings she has indicated that she will not attend any further conference or hearing. She also refuses to provide material in support of her application beyond the statements in her application and brief assertions in emails to the Commission. That material was provided contrary to the Directions issued and is insufficient to deal with the contested matters involved in her case.
Consequently, I dismiss the matter. An Order will issue separately.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR766994>
0
0
0