Ms Danielle Cartledge v Creasey's Pty Ltd T/A Gold Sovereign Motor Inn

[2010] FWA 5563

[2010] FWA 5563

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Danielle Cartledge
v
Creasey's Pty Ltd T/A Gold Sovereign Motor Inn
(U2009/14113)

COMMISSIONER LEWIN MELBOURNE, 3 AUGUST 2010

Application for unfair dismissal remedy – failure of applicant to attend.

[1] This decision concerns an application by Ms Danielle Cartledge for relief in relation to the termination of her employment with Creasey’s Pty Ltd T/A Cold Sovereign Motor Inn (Creasey’s) pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was lodged in Fair Work Australia on 24 November 2009.

[2] On 4 December 2009 the application was listed for conciliation by telephone on 18 December 2009. On the same notice, parties were directed to provide Fair Work Australia with telephone numbers to contact them on at least three days prior to the conciliation. Ms Cartledge and Creasey’s were sent the notification for the telephone conciliation by post. Fair Work Australia did not receive contact telephone numbers from either party. On 15 December 2009, an employee from the Fair Work Australia Unfair Dismissals Team contacted Ms Cartledge by email to urgently request the telephone number the Conciliator should ring for the purpose of conducting the telephone conciliation. That employee also wrote to Creasey’s on the same day to request that the company provide a telephone number and a Form 3—Employers response to an application for unfair dismissal remedy.

[3] On 15 December 2009, Creasey’s legal representatives filed in the tribunal a letter requesting an adjournment and notified Fair Work Australia of their telephone number. Creasey’s representative also indicated that they would file a Form 3 in Fair Work Australia the following day.

[4] On 16 December 2009 Fair Work Australia granted the request for an adjournment and the telephone conciliation was re-listed for 22 December 2009. On 18 December 2009 Creasey’s representative filed a Form 3 in the Tribunal.

[5] During the telephone conciliation on 22 December 2009, Ms Cartledge appeared on her own behalf. Creasey’s were represented by Cuthbertson Barristers and Solicitors. Terms of settlement were agreed upon during the conciliation. Those terms were signed by the Mr Ben Green on behalf of the Respondent. Ms Cartledge did not sign the terms of settlement agreed to during the conciliation conference.

[6] On 15 March 2010 Mr Ben Green wrote to Fair Work Australia in the following terms:

“...

We are of the view that our clients incurred costs unreasonably because of the action of the applicant. Whilst we acknowledge that the applicant may or may not have had legal advice, we contend that the applicant brought about an application which lacked any merit.

The applicant failed and has continued to fail to execute the Terms of Settlement as provided by FWA on the day of conciliation. Because these terms have not been executed, our client is still exposed to liability, the matter has not been resolved by FWA’s own documentation we put the Applicant on notice that we shall seek our client’s legal costs.

We contend that because the Applicant has clearly not bothered to sign the Terms that it is open to the Respondent to make application in respect to the costs incurred.

Under the FWA Act an applicant making a costs application has fourteen days in which to do so, after the matter has been resolved. By the inaction of the Applicant, the matter is still open.

...

[7] On 14 May 2010, the application was listed for Arbitration Conference/Hearing on 20 July 2010 at the Ballarat Magistrates Court. Directions were included on the notice of listing which directed Ms Cartledge to file an outline of submissions and any witness statements and other documentary material by noon on 11 June 2010. Creasey’s were directed to file by noon on 25 June 2010. The notice of listing and directions were sent to Ms Cartledge by post and by email to the addresses provided on the application. Creasey’s representative was sent the notice of listing and directions by email and Creasey’s were notified by post.

[8] Ms Cartledge did not file pursuant to the Directions of 14 May 2010. On 17 June 2010 the application was listed for Non Compliance Conference/Hearing by telephone on 24 June 2010. Parties were directed to confirm their telephone numbers 3 days prior to the listing. Creasey’s representative confirmed participation at the Non Compliance proceeding and provided a contact telephone number. Several attempts were made to contact Ms Cartledge by telephone prior to the proceedings scheduled for 24 June 2010 to no avail. Fair Work Australia was unable to contact Ms Cartledge on 24 June 2010 to conduct the Non Compliance Conference/Hearing.

[9] On 24 June 2010, Fair Work Australia issued a notice of listing changing the Arbitration Conference/Hearing listing for 20 July 2010 from Ballarat Magistrates Court to Fair Work Australia in Melbourne. Creasey’s was excused from attending. Due to a change in allocation of the file, the listing was changed from 20 July 2010 to 21 July 2010. Ms Cartledge was notified of this change via email.

[10] Ms Cartledge failed to attend the Hearing at 10.00 am on 21 July 2010. My Associate attempted to contact Ms Cartledge after that time and that day by telephone to no avail.

[11] At the Hearing, I expressed my view, for the record, that the applicant had failed to attend to the proceedings and had failed to attend at the proceedings. It appears, considering all the circumstances, that the applicant is failing to prosecute the application.

[12] The transcript of the Hearing on 21 July 2010 is as follows:

“THE COMMISSIONER: This matter has been listed on directions requiring the applicant's attendance and excusing the respondent because of a history of repeated failures of response by the applicant to numerous communications by Fair Work Australia in relation to the proceedings. It is now 10.20 am, the matter was listed at 10 am. There is no appearance by the applicant, as directed. My associate has made attempts to contact the applicant using the information available to Fair Work Australia in relation to the address and phone number of the applicant. All such attempts have been unsuccessful. This is consistent with the history of the matter, the nature of the directions issued in relation to the hearing listed for this morning.

In my view, the applicant has failed to attend to the proceedings, has failed to attend at the proceedings, and it would seem, to me, fairly clear that the applicant is failing to prosecute the application that has been made. In these circumstances, it is my intention to issue a decision striking the application out, and that decision will be published in due course. A copy of the transcript of these proceedings will be forwarded to the applicant's last known address. Thank you, the matter is reserved for the publication of this decision.

ADJOURNED INDEFINITELY [10.20AM]”

[13] The transcript was provided to Ms Cartledge on 22 July 2010 by email. A copy of the transcript was also posted to Ms Cartledge on 29 July 2010 at her last known address.

[14] Fair Work Australia may dismiss an application pursuant to s.587 of the Act which is set out below:

“587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA 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.

(2) Despite paragraphs (1)(b) and (c), FWA 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) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[15] Fair Work Australia has made all reasonable attempts to provide Ms Cartledge with the opportunity to prosecute the application that she filed. It appears that Ms Cartledge is no longer prosecuting the application. Ms Cartledge has been afforded adequate and fair opportunities to have the application dealt with and has failed to avail herself of those opportunities. The Tribunal hereby exercises its power to dismiss the application upon its own initiative pursuant to s.587(3)(a) of the Act. An order will issue accordingly.

COMMISSIONER

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