Ms Jaydee McCall v

[2022] FWC 721

[2022] FWC 721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Jaydee McCall

v

Uniting Victoria and Tasmania Ltd

(U2022/314)

DEPUTY PRESIDENT YOUNG MELBOURNE, 31 MARCH 2022

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the

Act.

1. On 4 January 2022 Ms Jaydee McCall made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms McCall said that her employment had been terminated by Uniting Victoria and Tasmania Ltd (Respondent) on 15 December 2021.

1. On 3 March 2022 a Notice of Listing and Directions, including links to information on the material required to be filed and information on preparing for a hearing, were sent to the parties. Ms McCall was required to file her submissions, witness statements and any other evidence she sought to rely on in support of her application by 21 March 2022. The matter was listed for Hearing on 5 and 6 May 2022.

1. On 21 March 2022 Ms McCall did not file any material with the Commission.

1. On 22 March 2022 correspondence was sent from my chambers to Ms McCall informing her that the Commission had not received her material and she was to file those materials by close of business that same day. Ms McCall did not file any material on 22 March 2022.

1. On 23 March 2022 a notice of listing was sent notifying the parties of a mention hearing (Mention) to be conducted by telephone at 2:30pm, 25 March 2022. Parties were requested to confirm attendance for the scheduled Mention via email by close of business 24 March 2022. Ms McCall did not provide a response.

1. On 25 March 2022 at 12:24pm my Associate attempted to call Ms McCall on the mobile number provided for the conciliation. Ms McCall did not answer. A voicemail was left to advise Ms McCall of the Mention and ask Ms McCall to provide contact details to chambers. At 2:30pm Ms McCall was again telephoned, and a voicemail was left advising her of the Mention.

1. The Mention commenced in Ms McCall’s absence. At the Mention the Respondent made an oral application pursuant to s.399A seeking to have the matter dismissed (Dismissal Application).

1. On 28 March 2022 an email attaching a notice of listing was sent to the parties notifying that the Respondent had made an application pursuant to s.399A seeking to dismiss the matter and listing it for mention hearing (Further Mention) to be conducted by telephone at 4.00pm that afternoon.

1. On 28 March 2022 at 12.06pm my Associate attempted to call Ms McCall. Ms McCall did not answer. My Associate left a voicemail message drawing Ms McCall’s attention to the Mention that afternoon and leaving a telephone number to contact chambers.

1. At 3.57pm and 4:02pm that afternoon my Associate attempted call Ms McCall into the Further Mention. Ms McCall did not answer.

1. At 5.01pm that afternoon my Associate sent correspondence to Ms McCall reconfirming that the Dismissal Application had been made and that Ms McCall had failed to attend the Further Mention to address that application.  That correspondence also directed Ms McCall to file submissions in response to the Dismissal Application by close of business Wednesday 30 March 2022.

1. Ms McCall failed to file any submissions as directed on 30 March 2022.

1. On 31 March 2022 the Respondent wrote to my chambers, copying in Ms McCall, re-making its Dismissal Application.

1. Should it be necessary, I waive compliance with the Fair Work Commission Rules 2013, and accept the Respondent’s oral Dismissal Application and the re-making of that application by email on 31 March 2022.

1. Section 399A of the FW 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.”

1. Ms McCall failed to file any submissions or a witness statement in accordance with the directions of the Commission on 21 March 2022. She failed to file any materials by the extended deadline on 22 March 2022. She has failed to respond to any communications regarding those directions or to provide contact details for the Mention. She failed to attend the Mention on 25 March 2022 and the Further Mention on 28 March 2022. Finally, Ms McCall failed to file any submissions in response to the Dismissal Application on 30 March 2022.

Conclusion

1. On the basis of the information before me, and in these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms McCall’s application.

1. An order giving effect to this will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR739896>