Ms Fiona Wilson v Mickala Services Pty Ltd

[2019] FWC 7918

[2019] FWC 7918

FAIR WORK COMMISSION

DECISION

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

Ms Fiona Wilson
v
Mickala Services Pty Ltd
(U2019/7651)

DEPUTY PRESIDENT LAKE BRISBANE, 20 NOVEMBER 2019

Application for an unfair dismissal remedy – application dismissed.

[1] This decision concerns an application by Ms Fiona Wilson for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). Ms Wilson commenced employment with Mickala Services Pty Ltd (the Respondent) on 29 January 2018. Ms Wilson claimed that she was unfairly dismissed on 20 June 2019. The application sought an order requiring the Respondent to pay Ms Wilson compensation.

[2] The Respondent objected to the application on two jurisdictional grounds. The first ground was that Ms Wilson had not been dismissed in accordance with s. 386(a) of the Act. The second ground was that the application for an unfair dismissal remedy was out of time by virtue of s. 394(2) of the Act (the jurisdictional objections).

[3] On 4 October 2019, I issued directions to the parties for the filing of written submissions and other documents in support of their respective positions regarding the jurisdictional objections. Parties were advised that the matter will be listed for hearing on the jurisdictional objections by telephone in early November 2019. The jurisdictional objections conference was originally listed for 3:00pm AEST on 13 November 2019. This was subsequently amended, on the Commission’s initiative, to 3:00pm AEST on 19 November 2019.

[4] The Respondent complied with the directions and filed its submissions and supporting documents on 8 October 2019 (4 days after the directions were issued) pursuant to my directions of 4 October 2019. Ms Wilson was required to file her submissions and supporting documents by 31 October 2019. Ms Wilson failed to file her submissions as per my directions.

[5] On 18 November 2019, I issued further directions to Ms Wilson requiring her to:

•  advise chambers by no later than 10:00 am AEST on 19 November 2019 that she intend[ed] to continue with her application;

•  file her material in accordance with the directions of 4 October 2019, by no later than 12:00 pm AEST on 19 November 2019; and

•  provide her best contact number for the [jurisdictional objections] hearing [at 3pm on 19 November 2019].

[6] No response was received from Ms Wilson.

[7] At 12:11pm AEST on 19 November 2019, my chambers sent correspondence to Ms Wilson putting her on notice that, in absence of a reply, her application may be dismissed.

[8] No response was received from Ms Wilson.

[9] I proceeded to conduct the jurisdictional hearing at 3:00pm on 19 November 2019.

[10] My Associate attempted to contact Ms Wilson on three occasions via telephone (at 2:56pm AEST, at 2:58pm AEST and at 3:01pm AEST), however, was unsuccessful. Mr Craig Joy, appearing on behalf of the Respondent (and given leave to appear as a paid agent pursuant to the factors under s. 596 of the Act – complexity, fairness as between the parties and efficiency), made an oral application at the jurisdictional objections hearing for the Commission to exercise its power under s.399A of the Act to dismiss Ms Wilson’s application on the basis that she had failed to attend a hearing conducted by the Commission and had failed to comply with directions of the Commission (s. 399A(1)(a) and (b) of the Act). Subsequent to the conference, my Associate called Mr Joy to request that he make this oral application pursuant to s. 399A in writing. My chambers confirmed receipt of a written application later in the afternoon on 19 November 2019 from the Respondent to have the application made by the Applicant dismissed pursuant to s. 399A (1)(a) and (b) of the Act. I accepted this application from the Respondent and any waived any other formal requirements under the Fair Work Commission Rules 2013 (see rule 6).

[11] As at the time of writing this decision, Ms Wilson has not continued to not respond to any of the Commission’s correspondence or returned my Associate’s calls and voice message to her left on 19 November 2019.

[12] 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.”

[emphasis added]

[13] I have concluded that the circumstances in s 399A(1)(a) and (b) were each enlivened, and that it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application. Ms Wilson has twice (and arguably three times) failed to comply with directions to file material, and failed to attend a hearing or conference conducted by the Commission. She was provided fair warning that she was required to attend the hearing of 19 November 2019, and was even put on notice that her application may be dismissed if she did not attend.

Failure to prosecute claim

[14] I wish to briefly comment on Ms Wilson’s failure to prosecute her claim against the Respondent.

[15] Ms Wilson decided, on her own initiative, to bring proceedings against the Respondent and seek an order from the Commission requiring the Respondent to pay her compensation. She filled out the unfair dismissal application form (Form F2) and filed this, albeit late. She then did almost nothing to pursue her claim. She attended a conciliation conference wherein the matter did not settle. She then attended the mention/directions conference before me on 4 October 2019. She then proceeded to ignore the directions that I set at this conference to file materials in relation to the jurisdictional objections made by the Respondent. She then failed to comply with my amended directions of 18 November 2019 which reminded her to file her materials, or at least indicate to me that she intended to continue her claim. She then failed to participate in jurisdictional objections hearing on 19 November 2019. She did not make contact with my chambers at any time regarding her non-compliance with my directions or her inability to attend the jurisdictional objections hearing. In short, the Applicant failed to respond to the Commission’s correspondence. The Applicant did not answer her phone. The Applicant did not attend proceedings which were dealing with the matter that she initiated. This conduct is grossly unsatisfactory.

[16] Meanwhile, the Respondent, a regional business based in Mackay, was put to the effort of responding to the Applicant’s claim. It properly took the claim earnestly. It engaged a paid agent, Mr Craig Joy, to assist it in responding to the Applicant’s application. It complied with directions (well in time) to file its material. Its submissions were reasonably detailed and provided further information which would assist the Commission. It participated in the telephone proceeding for the jurisdictional objections.

[17] Further, the resources of the Commonwealth were deployed on Ms Wilson’s claim. The Unfair Dismissals Team originally had carriage of the matter. It then proceeded to a conciliation which took up the conciliator’s time. The file was then handled by the Brisbane Registry and the Associate of Deputy President Asbury, who has carriage of the regional files for Queensland. It was then allocated to me. I conducted a mentions/directions conference. A notice of listing was sent to the parties for this. Following this conference, I then drafted directions. I then took time to read the submissions and material of the Respondent after they were filed. My Associate took time to write to Ms Wilson concerning her failure to file materials on 18 November 2019. My Associate also took time to write to Ms Wilson again on the day of the jurisdictional objection hearing on 19 November 2019. My Associate then called the Ms Wilson multiple times before the jurisdictional conference was due to begin and after it started. She did not answer her phone. My Associate left a voicemail message for the Applicant to call my chambers back. She did not do so (and still has not on the date of publishing this decision). After a short recess, I conducted the jurisdictional objections hearing and have recorded written reasons for my decision as the Act requires. All these actions occurred at the Australian taxpayer’s expense. It cannot be said that the Commission did not seek to assist Ms Wilson in her making her application.

[18] While the Respondent, the public service, the Commission and the Australian taxpayer were at work on Ms Wilson’s unfair dismissal application, she did almost nothing. Such behaviour is, regrettably, not uncommon.

[19] It is unacceptable that a person can institute a proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission (and cost the taxpayer money), all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are rarely brought. I am told that respondents often do not consider it worthwhile.

[20] I dismiss the Applicant’s application pursuant to the Respondent’s application made under s. 399A(1) and (2). I so Order.

DEPUTY PRESIDENT

Appearances:

The Applicant: no show.

The Respondent: Mr Craig Joy, a paid agent given permission under s. 596 of the Act to appear on behalf of the Respondent.

Hearing details:

Jurisdictional Objections Hearing: 19 November 2019 (by telephone)

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