Ms Clarissa Tema v Serco Australia Pty Limited T/A Serco
[2022] FWC 3192
•2 DECEMBER 2022
| [2022] FWC 3192 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Clarissa Tema
v
Serco Australia Pty Limited T/A Serco
(U2022/9663)
| COMMISSIONER YILMAZ | MELBOURNE, 2 DECEMBER 2022 |
Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative.
On 30 September 2022, Ms Clarissa Tema (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleged she was unfairly dismissed by Serco Australia Pty Limited T/A Serco (the Respondent) on 9 September 2022.
The Applicant states in her Form F2 Unfair Dismissal Application that she commenced employment with the Respondent in 2020, that her dismissal took effect on 9 September 2022. The employer response also corroborated the termination date specified in the Applicant’s Form F2 and clarified that the Applicant commenced working for the Respondent on 13 July 2020.
The matter was listed for conciliation before a staff conciliator on 28 October 2022. The staff conciliator determined the matter could not be resolved at conciliation. The application was subsequently allocated to me, and my chambers issued a notice of listing to the parties on 31 October 2022 for a Mention/Directions hearing for 4 November 2022.
On 4 November 2022, the Mention/Directions hearing proceeded, and all parties were in attendance. Following the hearing, I issued directions that the Applicant was to file her submissions by 5pm on Friday 25 November 2022.
The Applicant failed to file any submissions.
On 28 November 2022 my chambers emailed the Applicant advising that she had failed to comply with the filing dates set out in the directions issued on 4 November 2022 and that she must file by close of business.
On that same day my chambers made 2 attempts to call the Applicant but was unable to contact her and unable to leave a voicemail.
Later that same day my chambers sent out a SMS message to the Applicant informing her that she had failed to file submissions by 25 November and that her matter would be listed for non-compliance hearing.
After 5pm on 28 November 2022, my Chambers sent out an email listing the matter for a non-compliance hearing scheduled for 29 November 2022.
On 29 November 2022, the Respondent filed an application to dismiss the Applicant’s application for unfair dismissal remedy pursuant to s.399A (2) of the Act. It submits that in the circumstances the requirements of s.399A(1)(b) have been met as the Applicant has failed to comply with the directions issued on 4 November 2022 and on 28 November 2022. It submits that the Applicant has failed to provide any explanation for not filing her materials and repeatedly failed to comply with directions. In the circumstances it requests the Commission exercise its powers pursuant to s.399A(1) of the Act to dismiss the Application.
On the day of the non-compliance hearing the Respondent was present and the Applicant could not be contacted. My chambers attempted to telephone the Applicant 3 times and 3 voicemail messages were left requesting her urgent attendance. No response was received.
To date, the Applicant has not responded to any of the correspondence sent to her by my chambers.
The Legislation
Section 399A of the Act concerns the power of the Commission to dismiss an application for a remedy for unfair dismissal under subsection 1 when an application is made by the employer. Relevantly, s.399A 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.”
While the Respondent has made an application to dismiss the Applicant’s application, the Commission may also on its own motion dismiss an application subject to s.587 of the Act.
Section 587 of the Act provides as follows:
“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 and Conclusion
On conclusion of the noncompliance proceedings, the Applicant has not contacted the Commission and having considered the failure of the Applicant to comply with directions, respond to communication from the Commission, attend the noncompliance hearing, explain her failure to comply or discontinue, I am satisfied that the application for a remedy for an unfair dismissal should be dismissed.
I am satisfied that pursuant to s.399A the Commission may dismiss an application where the applicant has failed to comply with directions and the application to dismiss was made by the employer.
Further at the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).
Had the Respondent not made the Application to dismiss the Commission may dismiss on its own motion where it considers that the matter cannot be prosecuted because of failure by the Applicant to comply with directions or engage with the Commission. In this instance Ms Tema has not complied with the directions nor responded to the numerous attempts by the Commission to engage with her. I am also satisfied that through those attempts to contact her, the Applicant was on notice of the risk that failure to contact the Commission, that her matter may be dismissed.
On this basis, the application is dismissed for failure to comply with the Commission’s directions pursuant to s.399A and her failure to engage with the Commission pursuant to s.587 of the Act.
An order[1] to that effect will be issued with this decision.
COMMISSIONER
[1] PR748558.
Printed by authority of the Commonwealth Government Printer
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