Ms Jeanette Hitaua v Woolworths Ltd

[2015] FWC 2375

[2015] FWC 2375

FAIR WORK COMMISSION

DECISION

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

Ms Jeanette Hitaua
v
Woolworths Ltd
(U2014/14745)

DEPUTY PRESIDENT ASBURY BRISBANE, 7 APRIL 2015

Application for relief from unfair dismissal - s.399A application to dismiss - Applicant wrote to the Commission at 8.01 am to advise that she was not attending after having confirmed that she intended to proceed with the hearing - No evidence of claimed personal reasons and not being in stable frame of mind - Applicant previously warned about implications of proceeding with hearing - Finding that Applicant has unreasonably failed to attend a hearing in relation to the application - Application dismissed.

Background

[1] This Decision concerns an application by Ms Janet Hitaua (the substantive application) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Woolworths Ltd. The substantive application was listed for hearing to commence at 10am on Tuesday 7 April 2015. At 8:01 am on the date of the hearing, Ms Hitaua sent an email to the Commission and to the Respondent’s representative, in the following terms:

“Dear Commissioner Asbury,

Due to Personal Reasons And not being in a stable frame of mind I will not be attending Abitration today.

I also understand that the matter will not go any further than this.

Thanks for your assistance 
Jeanette”

[2] The hearing commenced at 10am on 7 April 2015. At the commencement of the hearing Mr Stephen Jauncey, Lawyer of Henry David York, made an oral application for the substantive application to be dismissed pursuant to s.399A of the Act.

[3] I caused correspondence to be sent to the Applicant by my Associate at 10.11 am (during the hearing) in the following terms:

“Dear Ms Hitaua,

The Deputy President advises that the Hearing in this matter has convened. The Respondent has made an application for your application to be dismissed.

If you wish to be heard in this matter you are required to contact the Commission by no later than 11am today.”

[4] The Applicant did not make contact with the Commission by 11.00 am or before the Decision was released.

History of the substantive application

[5] The substantive application was filed on 31 October 2014. The Applicant’s representative was said to be the National Union of Workers (the NUW). A notice of listing setting the matter down for conciliation was sent on 10 November 2014, with conciliation to occur on 25 November 2014. The notice of listing was sent to the industrial officer of the NUW named in the substantive application.

[6] Conciliation could not proceed on this date as the Applicant’s representative did not appear. The industrial officer of the NUW named on the application, and to whom the notice of listing was sent, corresponded with the Commission and the Respondent on 25 November to apologise and advise that although listed on the substantive application, he was not the industrial officer responsible for the carriage of the matter. Notes on the Commission’s file from the Conciliator indicate that the Applicant also did not attend the conciliation and advised that she was unaware of the listing. I note that the Commission’s records indicate that the notice of listing was sent to the Applicant directly as well as to her representative.

[7] Also on 25 November 2015 an “industry organiser” for the NUW wrote to the Commission requesting that the matter be referred for arbitration. The Respondent had earlier indicated in writing to the Commission and the Applicant a preference for the matter to be rescheduled for conciliation.

[8] On 16 December 2014 the substantive application was listed for hearing on 11, 12 and 13 March 2015. Directions were issued at the same time as the notice of listing. The Applicant was required to file material in relation to the substantive application by no later than noon on 19 January 2015.

[9] On 23 December 2014 the NUW withdrew as the Applicant’s representative. Just prior to 3pm on 19 January 2015, the Applicant emailed the Commission requesting an extension of time within which to file her material. The Respondent objected to an extension being provided.

[10] On 23 January 2015, the Head of the Termination of Employment Panel, Deputy President Gooley, granted both parties an extension of one week to file their material and advised the Respondent that if it wished to make an application pursuant to s.399A of the Act, a formal application should be filed in accordance with the Fair Work Commission Rules 2013.

[11] On 27 January 2015 the Respondent filed a Form F1 application seeking that the substantive application be dismissed. On 2 March 2015, Deputy President Gooley issued a Decision dismissing the Respondent’s s.399A application. 1 The substantive application remained listed for Hearing on 11, 12 and 13 March 2015.

[12] At 12:22pm on 10 March 2015, the day prior to the scheduled hearing of the substantive application, the Applicant emailed the Commission at 12:22pmrequesting an adjournment. My Associate forwarded the Applicant’s adjournment request to the Respondent’s representative and the matter was listed for Mention at 3pm that afternoon. Over the objection of the Respondent, the adjournment requested by the Applicant was granted.

[13] During the Mention, I spent some time explaining to the Applicant the implications of proceeding to hearing and of seeking an adjournment or withdrawing prior to the hearing, particularly without giving reasonable notice to the Respondent. Permission was also given to the Respondent to be legally represented. That permission was granted on the basis that of the necessity to vacate the three hearing days in March at the request of the Applicant meant that the hearing was required to be compressed to fit into available dates, and I was satisfied that the Respondent being legally represented would allow the matter to be dealt with more efficiently.

[14] I also indicated to the Applicant that I would require her to confirm that she wished to proceed with the hearing prior to the week in which it was listed and issued a direction in the following terms:

“Further to a Mention before the Commission on 10 March 2015, the Hearing on 11 March 2015 is vacated and the matter is further listed for Hearing at 10am on Tuesday, 7 April 2015.

The Applicant must advise the Commission, in writing, whether the Applicant intends to pursue the application and proceed to Hearing by no later than close of business on Monday, 30 March 2015. The Applicant must copy the Respondent’s representative into this correspondence.

In the absence of the Applicant notifying the Commission of her intention to pursue the application as directed by [2], the Commission may dismiss the application.”

[15] At 3.49 pm on Monday, 30 March 2015, the Applicant confirmed her intentions as follows:

“I am writing to you as per your instructions on 10 March 2015. I have very carefully considered the matter I hereby wish to advise that I would like to proceed and have the matter heard in court on the 7th April 2015.”

[16] As noted above, the Applicant did not attend the hearing scheduled for 7 April 2015 and did not advise that she would not be attending until less than two hours before the scheduled commencement time.

Legislation

[17] The Respondent has applied for the substantive application to be dismissed pursuant to s.399A, which 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.

Conclusion

[18] The Respondent contends that the Applicant has unreasonably failed to attend a hearing in relation to her application. The Respondent asserts that it is unclear from the Applicant’s correspondence whether she intends to discontinue her application.

[19] In the circumstances of this matter I have decided to grant the Respondent’s application under s. 399A and to dismiss the substantive application. This is the second time that the Applicant has corresponded with the Commission at very short notice to request an adjournment of a listed hearing or, in this case, to advise that she would not be attending.

[20] I note that the Applicant has stated in her correspondence of today’s date that she was not attending for personal reasons and because her mind is not “stable”. There is no medical evidence before the Commission in relation to these reasons. It is also the case that when the Applicant sought an adjournment on very short notice when this matter was initially listed for hearing I explained to the Applicant the implications of proceeding and gave her time to consider whether she wished to do so. The Applicant confirmed in writing that she wished to proceed with her application.

[21] The Applicant has also successfully defended an earlier application under s. 399A of the Act and was on notice that failure to attend a hearing or comply with a direction of the Commission may result in the substantive application being dismissed. I am satisfied that the Applicant has acted unreasonably in failing to attend a hearing held by the Commission in relation to the substantive application and that it should be dismissed under s. 399A of the Act. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Hitaua v Woolworths Limited[2015] FWC 1405.

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