Ms Brooke Prouten v Shutdown Staffing Services T/A Readi
[2019] FWC 1799
•5 APRIL 2019
| [2019] FWC 1799 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Brooke Prouten
v
Shutdown Staffing Services T/A Readi
(U2018/5281)
COMMISSIONER SPENCER | BRISBANE, 5 APRIL 2019 |
Application for an unfair dismissal remedy – s.399A application for dismissal.
[1] This decision relates to an application made by Ms Brooke Prouten (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Shutdown Staffing Services T/A Readi (the Respondent).
[2] The Applicant’s employment had been terminated for alleged ongoing absenteeism issues.
[3] The Respondent has applied for the Applicant’s application for an unfair dismissal remedy to be dismissed pursuant to s.399A(1)(a) of the Act. The application has been the subject of a number of delays. The Respondent previously sought to dimiss the application, as further referred to.
LEGISLATION
[4] In relation to the application to dismiss the substantive unfair dismissal application, s.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.
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).
(1) The FWC may exercise its power under subsection (1) on application by the employer.
(2) This section does not limit when the FWC may dismiss an application.”
BACKGROUND
[1] The matter has been subject to a prior dismissal application 1, for the Applicant’s non-attendance at conferences and non-compliance with Directions. But for the Applicant receiving factually incorrect information the matter would have been dismissed on that occasion. A Registry representative communicated to the Applicant, the matter was listed for Hearing that morning rather than conference and on that basis the Applicant failed to attend.
[2] The matter was further set down for hearing of the s.394 application, the parties consented to the date and Directions.
[3] On 7 January 2019, the Respondent sought an adjournment of the Hearing listed for this matter on the basis that the Respondent’s only witness was unavailable for the then scheduled date of 19 February 2019. On that same date an email was sent by my Chambers in response raising the adjournment and proposing that the listing date be amended to 14 March 2019 and seeking the availability of the Applicant. The Applicant replied by email on the same day indicating that she was available and did not raise any objection to the adjournment being granted.
[4] On 18 February 2019 an email was sent from my Chambers to the parties proposing that the Hearing be moved to 13 March 2019 to avoid a scheduling conflict. A response was sought from the parties as to their availability for that date. The Respondent confirmed its availability by email on 20 February 2019 and the Applicant confirmed her availability by email on the same day. Neither party raised any objection to the adjournment.
[5] On 6 March 2019, the listed time for the Hearing scheduled for 13 March 2019 was amended from 10am to 9:30am, to ensure the matters completion in the allocated time. The parties were notified by email of that change on the same day. Both parties confirmed their receipt of the notification and their attendance at the amended time.
[6] On 11 March 2019 2 days before the hearing, the Applicant corresponded with Chambers by email indicating that she was unable to attend the Hearing scheduled for 13 March 2019. She again cited the requirement to move house as the reason for this (this had previously been provided as a reason for non-attendance). Subsequently, on the same day, an email from Chambers, requested that she provide evidence as to the notification by her realtor of the requirement to move, to allow consideration of her adjournment request.
[7] At 06:57 am on 12 March 2019 the Applicant provided Chambers with two documents in support of her adjournment application. The first was a Decision of the Queensland Civil and Administrative Tribunal (QCAT) dated 22 February 2019, terminating the Applicant’s Residential Tenancy Agreement and issuing a Warrant of Possession. The second document provided was a Notice to Tenants/Occupants which stated that a police officer would be attending at the Applicant’s address at 11am on 20 March 2019 to enter and give possession of the premises to the Applicant’s realtor.
[8] Approximately one hour after the email referred to in paragraph [10] the Applicant sent to chambers the following:
“Good morning Chambers,
I have sent required evidence in another email.
I am questioning though, since the first hearing date scheduled for the matter, there has been multiple changes and adjournments to the hearing, but I don’t believe any other party has given a detailed reason as to why it has been adjourned nor asked or provided evidence.
I feel as though the question for evidence on my reasoning is very one sided considering I am the applicant in the matter. Although I don’t have an issue providing it as I have already sent it through, the last change that occurred to the scheduled hearing was only 5 days ago.
In addition to the above, I would like to request all correspondence between all parties regarding the matter and my employment? So I am able to have that file with me on the new scheduled hearing date incase they are needed.
Look forward to hearing from you.
Kind regards,
Brooke Prouten
…”
[9] The changes to the hearing listing as referred to, related to the timely adjournment (one and a half months prior to the hearing); sought on the basis of a witnesses unavailability. The other was an amendment to the hearing date, a month before, undertaken by agreement with the parties and the commencement time was brought forward by half an hour to accommodate the proceedings. The Application for adjournment by the Applicant was 2 days prior to the Hearing based on information she was aware of more than 2 weeks earlier.
[10] At 08:40am on 12 March 2019, in response to the email of the Applicant (referred to in paragraph [11]), the Respondent provided to all parties the email below.
“Dear Commissioner and Parties,
The Respondent strongly objects to this matter being adjourned any further.
The matter has been delayed many times during the past 10 months, generally at the initiative of the Applicant. The Respondent contends that the mater [sic] should continue on Wednesday, even on an ex-parte basis if required. The respondent requests that the Commission take into account the factors below in making a decision to adjourn or continue the matter:
1. The Respondent’s sole witness, Mr Stafford has already booked (and soon to board) a flight for Brisbane along with accommodation;
2. The Respondent notes that the Applicant’s QCAT order and Warrant of Possession does not take effect until next Wednesday, 20 March 2019;
3. The past delays have predominantly been at the initiative of the Applicant; and
4. The Respondent contends that it would be prejudiced should the matter be postponed any longer. This is due to the regular changes in business and any, albeit unlikely, adverse findings against it.
The Respondent also reserves its rights to costs in relation to this matter.
Regards,
John Mitchell
For the Respondent”
[11] At 09:15am on 12 March 2019, in response to the Respondent’s objection email (referred to in paragraph [14]) the Applicant sent the below email. Attached to that email were copies of the Notice of Listings issued on 9 January 2019, 21 February 2019 and 6 March 2019. There was also a copy of an email sent by Chambers on 18 February 2019.
“Good morning Commissioner & parties,
Taking into consideration of mr Mitchell’s response to my request I would like to make note that infact the last 4 changes to the original scheduled hearing of the 19th of February where [sic] not at the initiative of myself. The first change was at the initiative of the respondent agreeing to the scheduled date of 19th February then shortly after advising pre arranged appointments that Shane Stafford had made occurred after agreeing to the 19th which then move [sic] the matter to a month later. Attached reminder of the number of listings that have been changed by all other parties but myself.
The q cat order I have received was to be out of the property by the 11th of March midnight and should I not comply with that order then a warrant of possession was to be actioned. The above statement indicates to me that I am not to take the qcat order seriously and continue to reside in the property under a warrant of possession all due to the date being the 20th on that warrant of possession
As mentioned due to moving, packing, trying to find another suitable living arrangement that was more financially feasible it will be very difficult to then unpack and move to have access to my documents for tomorrow. it is not going to be accomodating if I am required to attend a hearing tomorrow morning.
Also taking into consideration that the chambers has accommodated to all other requests for adjournment I would hope that the request for mine with all supporting documents required also gets taken into account.
Kind regards
Brooke Prouten
…”
[12] The Applicant’s prior non-attendance at the Hearing (the subject of the earlier dismissal proceedings) was based on moving her house. The organisation of movers was an event that could have been communicated to the Commission, at an earlier time.
[13] At 12:24 pm on 12 March 2019, the below email was sent to the parties from my Chambers notifying them that an adjournment would not be granted.
“Dear Ms Prouten,
The Commissioner is in receipt of your adjournment request and the related evidence you have provided to support that request.
The Commissioner also notes that the Respondent has objected to the granting of that adjournment by email at 08:40am on 12 March 2019, to which you were copied in.
The Commissioner has review [sic] the Applicant’s documentation, she notes the QCAT decision for the termination of the residential tenancy agreement was made on 22 February 2019 and further notes the Notice to Tenants of the execution of the warrant to vacate is to be exercised on Wednesday 20 March 2019.
The prior amendment to the listing referred to be the Applicant was made to adjust the commencement time on the 13th March 2019 to ensure the proceedings were completed on that day. Prior amendments were made well in advance and by consent.
On this basis, it is further noted as set out in the documentation provided by the Applicant that the Applicant was aware of the QCAT decision more than 14 days prior to the listing, accordingly the Applicant relies principally on the need to pack for the impending move of which she has been aware for more than a fortnight. This reasoning does not support an adjournment.
Accordingly, the Hearing will be progressed as set out at 09.30am on Wednesday, 13 March 2019. You are required to attend in person at Level 14, Central Plaza Two, 66 Eagle St, Brisbane.
Given that the email addresses to which this correspondence is directed are those which the parties have used to correspond with Chambers this morning, the Commissioner considers it appropriate to provide this correspondence as the only confirmation of the maintained listing of this matter for tomorrow. Parties are asked to confirm their receipt of this correspondence but it is emphasised that the listing will proceed at the scheduled time regardless.
Kind regards,
…
Associate to Commissioner Spencer
…”
[14] A further email was sent from Chambers at 1:11pm on 12 March 2019 asking the parties to confirm their attendance at the Hearing. A response was received from Mr John Mitchell of the Respondent at 1:14pm confirming his attendance.
[15] A further email seeking confirmation of the Applicant’s attendance at the Hearing was sent by Chambers at 3:37pm on 12 March 2019. That is email is set out below.
“Dear Ms Prouten,
I refer to my below correspondence and the voicemail subsequently left on your mobile telephone.
The Commissioner directs that your attendance at tomorrow’s Hearing either be confirmed or you notify Chambers and the Respondent of your intention to not appear.
Such notification should be provided as a matter of urgency as soon as practicable this afternoon.
Kind regards,
…
Associate to Commissioner Spencer
…”
[16] The below response to the email referred to in paragraph [19] was received by Chambers from the Applicant at 5.26pm.
“Good afternoon Andy,
I have on numerous occasions attempted to contact you back with no answer or voicemail.
As mentioned, I am currently requiring to immediately leave the premises. Giving that the order was given on the 22nd of February that left me 14 days to find somewhere to relocAte [sic] to, which as you could imagine with no income be [sic] difficult to attain. It was not until Thursday last week was I given a confirmation of an affordable place for me to move to, was it then that I was able to start moving my possessions out. As you could imagine this has been difficult as I have had to ask friends to help with my move and majority of them work. Due not being in the financial position to afford removals
Seeing as thought the decision made to not adjourn the hearing was made in a very quick and bias way, I feel. Based of the previous correspondence it looks as though the choice on weather I am capable of attending or not has been revoked. There is no other option for me, other then to attend tomorrows hearing.
Kind regards
Brooke Prouten
…”
[17] The below reply was sent by Chambers to the Applicant at 5:34pm in response to the email set out at paragraph [20].
“Ms Prouten
The Chamber’s telephone ,Voicemail
and email has been attended all afternoon.
Your intention to proceed with tomorrow’s hearing is acknowledged
…”
[18] On Wednesday, 13 March 2019 at 8:20am the email set out below was sent by the Applicant to Chambers and the Respondent. Attached to the email was a medical certificate dated 13 March 2019 indicating that the Applicant was ‘receiving medical treatment and for the period 13th March 2019 to 20th March 2019 inclusive, she will be unfit to continue her usual occupation, or to appear before the Fair Work Tribunal’. The Applicant’s email stated:
“Good morning chambers and Mr Mitchell,
After the rejection on my request for adjournment yesterday due to my current circumstances was not taken seriously or into consideration.
I have received strict guideline by my gp and he has issued me with a medical certificate stating I am unfit to continue my current occupation and appear before the fair work tribunal today.
As previously requested, if you would be able to adjourn the hearing on the grounds of the attached and advise of the rescheduled date at your earliest convenience that would be much appreciated.
Kind regards,
Brooke Prouten
…”
[19] At 9:22am on 13 March 2019, the Applicant telephoned Chambers enquiring as to whether her email attaching the medical certificate has been received and seeking information on whether the Hearing would proceed. She was told that the Hearing would convene at 9:30am and the progress of the matter would be decided then. She was informed of the variety of potential outcomes. She was told that an email would be sent to the parties confirming the outcome of the listing.
[20] The Hearing convened at 09:30am on 13 March 2019 in Hearing Room 1 at the Fair Work Commission in Brisbane. The Applicant was not present. The Respondent and witnesses were present at the Commission premises. Mr Mitchell made his appearance, he appeared for the Respondent and he queried how the matter would proceed. Mr Mitchell confirmed he had flown and incurred accommodation costs for one of his witnesses, to appear at the Hearing and indicated he would be filing a dismissal application given the Applicant’s further non-attendance.
[21] At 2:39pm on 13 March 2019, the below email was sent by my Chambers to the Applicant.
“Dear Ms Prouten,
The matter convened this morning and some short discussions were held on the record between the Commissioner and Mr Mitchell.
The Hearing did not proceed, however no re-listing date was set as Mr Mitchell foreshadowed that a dismissal application would be filed. When that application is filed Directions will be issued.
Kind regards,
…
Associate to Commissioner Spencer
…”
[22] The Respondent filed its Application pursuant to s.399A(1)(a) of the Act on 19 March 2019, for dismissal of the Applicant’s s.394 application. With its application pursuant to s.399A, the Respondent also filed submissions it intended to rely on in seeking the dismissal of the Applicant’s s.394 Application.
[23] The dismissal application was listed for Hearing on 3 April 2019. Directions were issued on 19 March 2019, for filing of submissions and evidence by the Applicant, and any further submissions by the Respondent.
[24] On Monday, 25 March 2019 the Applicant sent the following email to my Chambers:
“Good evening commission Spencer
Apologise in the delay, I have not had internet to be able to receive emails and what not.
Yes I can confirm the attendance, in regards to the representation due to the schedule of legal practices I have to meet with them when they are free so there for I do not have an appointment untill the 27th this week and that does not leave enough time for someone to be able to go over all particulars involved in the matter. So there for a later date will be needing to be requested. There was no communication around the date for this hearing prior to it being made to see if it will be suitable for me assuming communication was already had with the respondent around that to know that it was a date that would suit them.
And that being done prior to it being sent to me and what not.
Kind regards
Brooke Prouten…”
[25] In response to the Applicant’s email of 25 March 2019 the following email was sent to the Applicant on Wednesday, 27 March 2019.
“Dear Ms Prouten,
I confirm receipt of the below correspondence.
The nature of the work the Commission undertakes and the number of matters it must deal with means that while the Commissioner endeavours to take into account the preferences of parties as to listing times and Directions dates, this is not always possible. Given the serious nature of the matters before the Commission, where the parties’ preferences cannot be accommodated it is expected that they prioritise the Fair Work Commission procedure and make themselves available.
The email of 19 March 2019 attaching the Directions for filing of material and setting a Hearing date in relation to the Employer’s dismissal Application was sent to all parties at the same time. The Notice of Listing sent on the same day was also provided to all parties simultaneously. It was necessary for the Commissioner to elect a date, on her availability. It is noted that in addition to the prior notification of this date there has been consultation on all prior dates however this has not aid [sic] your attendance.
The Directions issued on 19 March 2019 provided you with more than a week to respond to the Dismissal Application. The Dismissal Application relates to only a failure to attend the hearing and a failure to comply with a Direction of the Fair Work Commission, rather than the broader issue of the alleged unfair dismissal. Accordingly, the time provided is considered sufficient to comply with the Directions and to attend the Hearing.
As such, your material in response to the Application filed by the Employer on 19 March 2019 was due by 3pm Wednesday, 27 March 2019. I note it has not yet been received.
The in-person Hearing remains listed for 10am Wednesday, 3 April 2019.
Kind regards,
…
Associate to Commissioner Spencer
…”
[26] A further email was sent from my Chambers to the Applicant on Thursday, 28 March 2019. That email is set out below.
“Dear Ms Prouten,
I refer to my below correspondence.
I note that in your correspondence of 25 March 2019 you confirmed your attendance at the Hearing scheduled for 10am Wednesday, 3 April 2019. Thank you for providing that confirmation.
While I note that the deadline for your material to be provided has passed, the Commissioner may exercise her discretion to allow the inclusion of your material and therefore I urge you to file material for the Commissioner’s consideration. As you have now had the opportunity to seek legal advice, please confirm your intentions with regards to the filing of material.
Your response is required by close of business today, 28 March 2019.
Kind regards,
…
Associate to Commissioner Spencer
…”
[27] On Friday, 29 March 2019 the following email was received from the Applicant by my Chambers.
“Good afternoon commisionnor [sic] Spencer and mr Mitchell,
I apologise I have not sent through my submission, I was only able to receive the written advice from my legal appointment last night. They where aware of the urgency but due to their resources they did the best they could. I am at present compiling my response and submission to be sent through to you by COB today if on the occasion it pleases the commission to grant an extension of that material to COB today.
I understand if the extension is not granted and do not want to prevent from this being delayed any longer.
Could I please also request to be informed as to what matter is being discussed on Wednesday. I ask because the matter number on the notice of listing is my matter number for the application for unfair dismissal remedy and not the matter number for the application for dismissal of my application or is it stated anywhere on the notice of listing, as a correct merits document has not been filed for the recent respondents application.
If I could get some clarification that would be great.
Look forward to hearing from you.
Kind regards,
Brooke Prouten
…”
[28] In response to the email set out at paragraph [31], an email was sent from my Chambers to the Applicant stating:
“Dear Ms Prouten,
I note that your material has not yet been filed. This should occur as soon as possible.
The Application for dismissal is an application filed within a case. As such it is heard within the same matter and under the same file number. The Hearing on Wednesday, 3 April 2019 is for the parties to present their positions on whether your Unfair Dismissal Application should be dismissed pursuant to s.399A of the Fair Work Act 2009.
Kind regards,
…
Associate to Commissioner Spencer
…”
[29] At 8:05am Wednesday, 3 April 2019 the Applicant sent a further email to Chambers as set out below.
“Good morning Commissionir [sic] S and Mr Mitchell.
I have had troubles being able to send through
My material attached to the email as it was not doing anything other but sitting in my outbox folder.
I would like to have this resolved to if the opportunity presents itself I have had someone print copy’s for me for both the commission and the respondent. Please advise if this will be an option.
I would also like to request a non formal conciliation in person to see if the matter can be discussed and dealt with in an on the record discussion prior to it being a formal hearing.
Look forward to hearing from you
Brooke Prouten
…”
[30] The Applicant failed to file submissions and evidence in response to the Directions. The Applciant failed to attend the Hearing . No submissions were provided to be printed or otherwise. The matter had been subject to conciliation but could not be resolved.
[31] The Respondent filed submissions in accordance with the Directions and attended the Hearing.
[32] The matter was Heard in Brisbane on 3 April 2019. The Respondent relied on their Submissions.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS
Termination of the Applicant’s employment - merits
[33] The Respondent submitted that the Applicant’s employment was terminated for ongoing absenteeism issues. It submitted that the Commission should be satisified, on the written evidence filed in the substantive matter, that it has a strong defence to the claim brought by the Applicant in her s.394 application.
[34] The Respondent highlighted the actions of the Applicant since filing her s.394 application, which has included failing to attend two conferences conducted by the Commission, “without reasonable notice or excuse”. 2 The Respondent further submitted that on each occasion, the Applicant was not contactable, and that her non-attendance was a waste of the Commission and the Respondent’s time. The Respondent submitted that it is due to the Applicant’s pattern of behaviour that it filed its current s.399A application.
Current application
[35] The Respondent submitted that it has brought the subsequent s.399A application under subsection (1)(a); due to the Applicant’s pattern of conduct and unreasonably failing to attend the Hearing scheduled on 13 March 2019.
[36] The Respondent highlighted that at 4:38pm on 11 March 2019, the Applicant advised the Commission and the Respondent that she sought an adjournment of the 13 March 2019 Hearing. Following direction by the Commission to provide supporting evidence for the adjournment request, the Respondent noted that the Applicant provided a QCAT Order and warrant of possession of her rental property. The Respondent submitted that the Applicant had advised she was unable to attend a prior conference in 2018 due to removalists attending her property; however, her address at that time was the same as the address provided on the QCAT Order, hence the Respondent stated her “previous reason for non-attendance is questionable”. 3
[37] The Respondent noted that the Applicant’s request for an adjournment was rejected, and that the Applicant was requested by Chambers to provide confirmation of attendance at the Hearing by 3:00pm 12 March 2019. The Respondent submitted that as the Applicant failed to provide confirmation of such by the directed time, she failed to adhere to a direction of the Commission.
[38] Further, the Respondent submitted that despite the Aplicant providing a late confirmation of her attendance at the Hearing, at 5:26pm on 12 March 2019, and having provided a medical clearance for attendance at such on 8 February 2019, the Applicant then filed a medical certificate at 8:19am on the day of the Hearing advising she was not fit to attend. The Respondent submitted that the QCAT Order filed by the Applicant was made on 22 February 2019, therefore indicating she was fit at that time to attend a QCAT Hearing, “but apparently not a Fair Work Commission hearing two weeks later”. 4
[39] The Respondent submitted that the timing and duration of the medical certificate provided on 13 March 2019 is “at best, questionable and the Commission should not rely on it”. 5 The Respondent submitted that it had already invested a significant amount of money in preparation for and defending the substantive claim brought by the Applicant, including flying a witness from Melbourne to Brisbane for the Hearing. While the Applicant has been afforded multiple opportunities to prosecute her claim, the Respondent submitted that not only did she fail to attend the Hearing on 13 March 2019, she has “failed to provide sufficient evidence to further pursue the application”.6
Relevant case law
[40] The Respondent submitted that the current matter is factually similar to Aragon v Aegis Safety Pty Ltd T/A Techinspect. 7 In that decision, it was stated the Applicant failed to comply with directions on three separate occasions, and was offered a further opportunity to provide submissions or reasons for the failure. While the Commission acknowledged the hardships expressed by the Applicant in that matter, they were not considered exceptional and the application was dismissed.
[41] The Respondent also referred to the decision in Kora v Cardno Staff Pty Ltd T/a Cardno, 8 which found that where the Applicant failed to comply with directions and was unable to be contacted, the application should be dismissed for failure to prosecute. In that decision, the Commission further found that the materials provided by the Respondent indicated it had a defence to the claim by the Applicant.
[42] For the above reasons, and in line with the relevant case law, the Respondent submitted that the Commission should dismiss the Applicant’s s.394 application pursuant to s.399A(1)(a). Further, it stated it reserves its rights to pursue costs in realtion to this matter, under s.400A of the Act.
SUMMARY OF THE APPLICANT’S SUBMISSIONS
[43] The Applicant failed to provide any Submissions in response to the Directions despite an extension request being granted and further follow up from Chambers seeking her Submissions and confirmation of her attendance. The Applicant did not attend the Hearing.
CONCLUSION
[44] Section 399A of the Act 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.”
[1] The power of the Commission to dismiss an application should be used sparingly and approached with caution. 9 Relevant grounds have been provided for the consideration of the dismissal of this application now on the second occasion.
[2] The circumstances of the initial application for dismissal was set out in the relevant decision that is referred to. But for a piece of incorrect information being provided to the Applicant by a Registry representative in relation to one of the Conferences, the matter warranted dismissal on the non-attendance at that time.
[3] The merits of the case have been taken into account on the material filed in relation to the s.394 application. The Respondent’s material provides cogent reasoning and explanation for the dismissal.
[4] Subsequent to the prior dismissal proceedings, the merits matter pursuant to s.394 of the Fair Work Act 2009 was set down. The Applicant failed to attend these proceedings as set out which gave rise to the current dismissal Application from the Respondent.
[5] Accordingly, Directions and a Hearing were set to consider the second dismissal Application. The Applicant’s pattern of conduct has continued culminating in the non-compliance with the final Directions and the non-attendance at the Hearing in relation to the current dismissal Application.
[6] Whilst the Applicant’s circumstances have been given due consideration they did not present exceptional circumstances and did not explain the pattern of failure to prosecute the matter in terms of non-compliance with the Directions and non-attendance at the proceedings. The medical certificate provided in lieu of attendance at the prior Hearing (on the merits of the matter) has been acknowledged even though it was provided immediately before the Hearing, and following the Applicant’s confirmation she would attend. The certificate is provided by the same doctor and is contrary to the earlier medical clearance provided.
[7] The subsequent unreasonable failure to comply with Directions and provide submissions and then the unreasonable failure to attend the Hearing without explanation confirmed the continued pattern of the Applicant’s behaviour. The Applicant failed to provide any submissions in reponse to the Directions despite an extension being granted and further follow-up from Chambers seeking her submissions and required confirmation of her attendance. These email exchanges in regards to compliance with Directions and attendance, have been repetitive in this matter and despite opportunites being provided, the Applicant has failed to reasonably prosecute and respond to the proceedings in connection with the Application. The events have similarity to circumstances in the two cases referred to by the Respondent, as cited.
[8] Therefore, for the aforementioned reasons in accordance with s.399A(1)(a) and (b) of the Fair Work Act 2009 the Application made pursuant to s.394 of the Fair Work Act 2009 is dismissed.
[9] I Order accordingly.
COMMISSIONER
Appearances:
No appearance by or on behalf of the Applicant.
Mr J Mitchell Human Resources Manager for Shutdown Staffing Services T/A Readi for the Respondent.
Printed by authority of the Commonwealth Government Printer
<PR706001>
1 [2018] FWC 6460
2 Respondent’s Application to Dismiss Matter U2018/5281 filed 19 March 2019, at [5].
3 Respondent’s Application to Dismiss Matter U2018/5281 filed 19 March 2019, at [12].
4 Respondent’s Application to Dismiss Matter U2018/5281 filed 19 March 2019, at [18].
5 Respondent’s Application to Dismiss Matter U2018/5281 filed 19 March 2019, at [19].
6 Respondent’s Application to Dismiss Matter U2018/5281 filed 19 March 2019, at [21].
7 [2013] FWC 5993.
8 [2015] FWC 4699.
9 Resta v Myer Pty Ltd[2013] FWC 7080 at [32], [39]. See also Kora v Cardno Staff Pty Ltd T/A Cardno[2015] FWC 4699 at [9].
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