Ms Elizabeth Wyntjes v Latrobe Regional Hospital

[2020] FWC 6766

[2020] FWC 6766

FAIR WORK COMMISSION

DECISION

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

Ms Elizabeth Wyntjes
v
Latrobe Regional Hospital
(U2020/13420)

DEPUTY PRESIDENT MASSON MELBOURNE, 16 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 9 October 2020, Ms Elizabeth Wyntjes (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Latrobe Regional Hospital (the Respondent) was unfair. The Respondent lodged a Form F3 contending the Applicant was dismissed due to serious and wilful misconduct.

[2] The matter was allocated to my Chambers on 16 November 2020 for determination. Following allocation of the matter, directions were issued to the parties by my chambers on 16 November 2020 setting down a timetable for the filing of material by both parties in relation to the merits of the application.

[3] In the directions issued by my chambers on 16 November 2020 the parties were also advised of the listing of the matter for a Mention/Conference to be conducted at 2.00pm on 23 November 2020, and that they were each required to provide telephone contact numbers for the purpose of participating in the Mention/Conference. On 18 November 2020 the Applicant advised my chambers that she was unable to attend the Mention/Conference on 23 November 2020 and requested that it be re-listed on or after 1 December 2020. The Applicant’s request was acceded to and the Mention/Conference was relisted to 2.00pm on 1 December 2020

[4] On 1 December 2020 the Applicant again emailed my Chambers advising that she was unable to participate in the Mention/Conference listed for that day, citing ill health as the reason. A follow up email was then sent by my Chambers that day seeking the parties’ dates of availability for the mention to be relisted to. No response was received from the Applicant.

[5] The Applicant failed to file her material on or by 4pm on Monday 7 December 2020 as required by the directions issued on 16 November 2020. The matter was then listed for a non-compliance hearing to be held at 11:00am on Thursday 10 December 2020. The Applicant sent correspondence to my Chambers on 9 December 2020 advising that she was going away and would not be back until early January, and that she would not have telephone reception. The Applicant was advised in reply that the non-compliance hearing would proceed and that her application for an unfair dismissal remedy would be at risk of dismissal if she failed to attend.

[6] The non-compliance hearing proceeded on 10 December 2020 although the Applicant did not participate despite repeated efforts of my Associate to contact her by telephone. During the hearing the Respondent made an oral application pursuant to s. 399A that the application should be dismissed by reason of the failure of the Applicant to attend a conference or hearing conducted by the Commission and her failure to comply with directions of the Commission.

[7] Immediately following the conference, correspondence was sent by my chambers on 10 December 2020 to the Applicant advising her that an application had been made by the Respondent for her application to be dismissed pursuant to s. 399A of the Act. The Applicant was invited to provide submissions as to why her application should not be dismissed and was required to file those submissions on or by close of business, Tuesday 15 December 2020. No submissions were filed by the Applicant in response to the correspondence from the Commission to her on 10 December 2020.

[8] Section 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.

…

(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.”

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss her application for unfair dismissal remedy by 15 December 2020, I will determine the application on the papers.

[10] I am satisfied that the Applicant has displayed a pattern of non-compliant behaviour. Despite requests from my chambers she failed to provide dates of availability for the adjourned Mention/Conference. She then failed to file her submissions and materials in accordance with directions, failed to attend a non-compliance hearing listed for 10 December 2020 and then failed to respond to an invitation to make submissions as to why her application should not be dismissed.

[11] In the circumstances I have decided to grant the Respondent’s application under s. 399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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