Ms Brooke Prouten v Shutdown Staffing Services T/A Readi

[2018] FWC 6460

[2018] FWC 6460

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, 14 DECEMBER 2018

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.

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).

(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.”

BACKGROUND

[5] The matter was listed for Conference before Deputy President Asbury. The matter did not resolve at this conference, however further to discussions held between the parties, the hearing was delisted and a further Conciliation Conference listed before the Commission as currently constituted.

[6] The Applicant failed to attend this conference; despite this conference listing containing the contact details of Chambers, the Applicant telephoned the Fair Work Commission Helpline (rather than Chambers) on the morning of the conference, enquiring as to the listing of the matter. A Registry staff member erroneously advised the Applicant that there was a “hearing” listed at that time, to which the Applicant advised she believed it to be a 10am telephone mediation, and that she would be unable to attend in person at the time of the listing, for a hearing.

[7] At 9.45am, shortly after her call to the Registry, the Applicant sent an email to Chambers noting that she had been told there was a hearing scheduled for 12.30pm in person, and that she would be unavailable to attend. She therefore sought an adjournment. A reply was sent to the Applicant, clarifying that it was a telephone conciliation at 12.30pm, as per the listing, and a response was sought from the parties as to availability to attend by phone at 11am. The Applicant responded by email at 10.36am, advising that she was unavailable at that time.

[8] At the Applicant’s request, further to this, correspondence for a further conference was exchanged with the parties, and confirmation of their availability for the next possible conference time. The matter as agreed was then further listed for telephone conciliation. A further notice of listing was issued, and on the same day Chambers received email correspondence from the Applicant seeking confirmation that the listing was by telephone only, and would not require physical attendance. Email correspondence was sent from Chambers confirming that the listing would be by telephone.

[9] At the time of the conference, five attempts were made to dial in the Applicant. A voice message was left on her mobile phone, and an email sent seeking the Applicant urgently make herself available.

[10] The Applicant was unable to be contacted, and failed to attend this further conference.

[11] The Respondent attended the conference by phone, and following the telephone conference, it filed an application pursuant to s.399A(1)(a) of the Act for dismissal of the Applicant’s application, on the grounds that the “Applicant has unreasonably failed to attend a conference conducted by the FWC in relation to the application”. 1 The Respondent submitted that the Applicant failed to attend two conferences conducted by the Commission, “without reasonable notice or excuse”, those being the conferences of 13 September 2018 and 12 October 2018.

[12] Regarding the non-attendance at the latest listed conference, and the fact that the Applicant was uncontactable, the Respondent submitted that “This non-attendance is a waste of the Commission’s and Respondent’s time”. It submitted that the Applicant had “failed to prosecute the matter” and therefore sought the Commission dismiss the application.

SUMMARY OF THE APPLICANT’S REPLY SUBMISSIONS

[13] The Respondent’s application for dismissal was forwarded to the Applicant, seeking the Applicant’s reply by 16 October 2018.

[14] The Applicant filed her response, and submitted that her inability to attend the first conference was due to scheduled interviews, and that she had contacted the Commission to seek clarification of the date and time of the listing but was provided incorrect information. She submitted that she contacted the Commission that morning, and “again was told incorrect information”. 2 She stated:

“I proceeded to then advise [sic] Commissioner Spencer of the situation immediately. I then did not re-schedule that conciliation for 11:00am the same day. As the respondent has said. It was then rescheduled.”

[15] Regarding the second conference, the Applicant submitted that on that morning she had a “removalist at my residents [sic]”, which arrived earlier than she had requested and advised they would be charging for every 30 minutes they were there. She submitted that she had no choice but to assist them, due to her need to reduce the expenditure.

[16] The Applicant intially failed to respond to the directions of Chambers, regarding evidence for reasons of the non-attendance. No evidence of the removal company, for example the booking receipt, was provided. The Respondent was frustrated, and their concerns were compounded by the Applicant’s attendance issues, being the reasons they stated as giving rise to the dismissal of her employment.

[17] Among other things, the Applicant submitted that as well as preparing for this matter, she had also been involved in a car accident, and now does not have a means of transport for attending appointments and interviews which has put strain on her situation and finances.

[18] The Applicant apologised for her inability to attend the conferences as listed, stating “I am also going to give an apology to both the Commissioner and the Respondent for their time wasted on that day. It was not an intention decision to not attend that conciliation”.

[19] The Applicant then sought an adjournment of the Directions in the matter, to seek legal advice, and committed after this to respond. She was granted such, but did not respond as required. A further response was sought from the Applicant (following her seeking advice), however no further reasonable information in relation to the dismissal application has been provided, as referred to below.

SUMMARY OF THE RESPONDENT’S FURTHER SUBMISSIONS

[20] In its further submissions to the application, the Respondent stated that they understood the Applicant’s reasons for non-attendance at the second conference to be:

“1. The Applicant was in a car accident rendering her car unusable; and

2. The Applicant had removalists at her property on the day of the conference.”

[21] The Respondent submitted that as the second conference was listed by telephone, the reason provided at point 1 should not satisfy the Commission. Further, in response to point 2, the Respondent contended that having removalists at her property is not a valid excuse for the Applicant’s failure to attend, as she should have expected and answered a call from the Commission. It stated, “To not answer this call indicates an intention not to participate in the conference”.

FURTHER DIRECTIONS

[22] Following consideration of the materials filed, further directions were issued, to allow the Applicant, as requested, a further opportunity to file materials in support of her submissions, particularly any evidence as to the early arrival of the removalists and the impact on her ability to attend the conference.

[23] The Applicant filed a further statement detailing that she had been unable to obtain further supporting evidence regarding the removalists, and that she did not retain any receipt. She sought direction as to any additional materials she could file, in support of her claim. She again noted that her non-attendance at the conference was not intended.

[24] Further to these submissions, a further opportunity was afforded to the Applicant, to file any documentation in support of her claim, including information from the removalist company in support of her booking.

[25] On 1 November 2018, the Applicant sent correspondence to Chambers advising she had been unable to obtain any receipt from the removalists, and that two days was not a sufficient time for her to obtain the evidence sought.

[26] Further to this correspondence, a further direction was issued to allow further time to provide any additional materials.

[27] On 12 November 2018, the Applicant filed further materials in support of her submissions, apologising for the delay and noting it was due to “multiple appointments” she had to attend the week prior. With her further materials, the Applicant submitted a Mental Health Treatment Plan, dated 8 November 2018, providing that the Applicant suffered Anxiety and panic attacks, for which she had received psychotherapy treatment. She submitted that she would be seeking an appointment with her psychologist, following which she would “have further documentation if required by FWC”.

[28] During a telephone conversation with Chambers on 14 November 2018, the Applicant advised she wished to seek legal advice regarding the dismissal application. A further period was allowed for the Applicant to seek this advice.

[29] Contact was made, to seek an update as to the outcome of the legal advice sought by the Applicant. Following a telephone conversation, the Applicant sent correspondence to Chambers on 28 November, advising she would be seeking “further evidence to defend against the dismissal of [her] application”. She noted that submissions made by the Respondent were “very misleading towards [her] character and actual events that occurred throughout [her] employment and leading up to the matter”. It was reiterated that the Commission was considering the application to dismiss only, and not the merits application.

[30] The Applicant sent further correspondence to Chambers, reiterating that she was unable to acquire any receipt for the removalist job, and that further reference was made to the erroneous comments (to a hearing) of the Registry staff member, which confused her, and she relied on this for the non-attendance.

[31] A final opportunity was afforded to the Applicant, until 6 December 2018, to file any further material. She provided further submissions, in support of her s.394 claim and that the application should not be dismissed. The Applicant also provided a Discovery Order for further documents.

CONSIDERATION

[32] Section 399A of the Act provides that the Commission may, on application by the Employer, dismiss an application where the Applicant has unreasonably:

•  failed to attend a conference or hearing at the Commission

•  failed to comply with a direction or order of the Commission, or

•  failed to discontinue the application after a settlement agreement has been reached.

[33] The power of the Commission to dismiss an application should be used sparingly and approached with caution. 3

[34] The Respondent submitted that, due to the Applicant’s failure to attend the conferences as listed, the Applicant had failed to prosecute the matter, and therefore it sought the dismissal of the Applicant’s application. It further submitted that the Applicant, through her actions, has indicated an intention not to participate in listings before the Commission.

[35] The Applicant submitted that regarding the first conference, she had on two occasions been provided incorrect information regarding the listing by Commission employees. Further, she submitted that she had made contact with Chambers prior to the conference, to advise of her inability to attend.

[36] Regarding the second conference, the Applicant submitted that she did not intentionally fail to attend, but rather her circumstances and the unexpected early arrival of removalists resulted in her inability to make contact, or be contacted at the listing time.

[37] While the Applicant’s circumstances have been given due consideration, they do not sufficiently explain an inability to answer a call, or send an email, providing explanation for an inability to attend the second conference. A notice of listing for this conference had been issued four weeks in advance, with follow up correspondence sent and replied to by the Applicant confirming receipt of the listing and that it would be conducted by telephone. The Applicant was therefore on notice that the matter was further listed for conference, and the details of such. The Respondent’s submissions are noted, that the Applicant was in fact aware of the date and time of the telephone conference, but has indicated an unwillingness to attend.

CONCLUSION

[38] The Applicant’s non-compliance has been significantly critiqued in this matter. However, the factually incorrect information she received from the Registry regarding the conference (as evidenced in the Registry file note of the advice provided to the Applicant), must be considered. The erroneous information suggesting the matter was listed for hearing confused the Applicant.

[39] Given the Applicant acted on this incorrect information, there is not a satisfactory basis (given the necessary high benchmark) to dismiss a substantive application. Given the discretion under s.399A must be exercised with caution, taking into account the significance of removing an Applicant’s opportunity, and for these reasons, the s.399A application is dismissed. I Order accordingly.

[40] The s.394 application will be listed for hearing.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Respondent’s Application for Dismissal dated 12 October 2018.

 2   Applicant’s reply letter dated 14 October 2018.

 3   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].