Ms Michelle Rix v All Support Corporate Services Pty Ltd

[2016] FWC 6640

[2016] FWC 6640

FAIR WORK COMMISSION

DECISION

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

Ms Michelle Rix
v
All Support Corporate Services Pty Ltd
(U2016/7173)

COMMISSIONER SAUNDERS NEWCASTLE, 15 SEPTEMBER 2016

Application for relief from unfair dismissal – non-compliance hearing – s.399A application made by employer – application dismissed

[1] Ms Michelle Rix was employed by All Support Corporate Services Pty Ltd (All Support) from April 2015 until her dismissal on 10 May 2016. Ms Rix claims that her dismissal was harsh, unjust and reasonable. Those allegations are denied by All Support.

History of proceedings

[2] Ms Rix filed an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 24 May 2016.

[3] All Support filed their employer’s response to Ms Rix’s application for an unfair dismissal remedy on 7 June 2016.

[4] The matter was listed for telephone conciliation before a Conciliator on 21 June 2016. The conciliation could not take place as Ms Rix was unable to be contacted at that time. The matter was relisted for a further telephone conciliation on 4 July 2016 before a Conciliator, however Ms Rix was again unable to be contacted.

[5] Following two unsuccessful conciliations, directions were made by the Commission on 21 July 2016 for the parties to file and serve outlines of submissions, witness statements, and other documentary material. The directions also gave notice to the parties that the matter had been listed for hearing in Newcastle on 19 and 20 September 2016.

[6] Ms Rix was directed to file and serve her material by no later than noon on Monday, 12 August 2016. Ms Rix did not comply with this direction and no material was received by Ms Rix in support of her application.

[7] The matter was allocated to my chambers on 19 August 2016.

[8] On 23 August 2016 at 1:43pm, my Associate sent an email in the following terms to the parties:

“Dear Ms Rix and Ms Haines

I refer to the above mentioned matter that has now been allocated to Commissioner Saunders of the Fair Work Commission.

We note that the matter is currently listed for Arbitration Conference/Hearing in Newcastle on Monday, 19 September and Tuesday, 20 September 2016.

We also note that Ms Rix was due to file and serve an outline of submissions, any witness statements or any other documentary material she intends to rely upon by no later than 12 August 2016. We have not received any material from the applicant in this matter.

Ms Rix, as a matter of urgency, you are directed to file and serve any material you intend to rely on in support of your application for an unfair dismissal remedy by no later than 4pm on Friday, 26 August 2016. If you fail to comply with this direction the Commissioner may dismiss your application pursuant to s.399A(1)(b) of the Fair Work Act 2009…”

[9] The email referred to in the previous paragraph was sent to Ms Rix at the email address provided by her in her application filed in the Commission on 24 May 2016.

[10] The Commission did not receive any communication from, or on behalf of, Ms Rix in response to this email.

[11] My Associate sent a further email to Ms Rix on 5 September 2016 at 10:26am in the following terms:

“Dear Ms Rix

I refer to the above matter currently before Commissioner Saunders of the Fair Work Commission.

We note that we have not received any response from you in relation to our correspondence below dated 23 August 2016.

As a matter of urgency, the Commissioner requires you to contact our chambers to confirm whether you wish to pursue your claim.

If you fail to contact our chambers urgently, the Commissioner has advised that your application may be dismissed.

I confirm a copy of this correspondence will also be sent to you by express post.”

[12] The email referred to in the previous paragraph was also sent to Ms Rix by express post to the address provided by her in her application.

[13] On 5, 7 and 9 September 2016, my Associate attempted to contact Ms Rix on her mobile number to confirm whether she was intending on pursuing her unfair dismissal application currently before the Commission. No contact was made, however voicemail messages were left requesting Ms Rix to call our chambers urgently, to which we received no response.

[14] On 12 September 2016, the matter was listed for Non-Compliance Hearing, by Telephone, at 9:00am on Thursday, 15 September 2016. In response to this notice of listing, the Commission received the following email from Ms Rix on 12 September 2016 at 6:54pm:

“Cancel the listing please as i am going direct threw a solicitor now because im getting no satisfaction threw you! [sic]”

[15] On 13 September 2016, my Associate replied to Ms Rix by email at 10:21am in the following terms:

“Dear Ms Rix

The Commissioner has read this correspondence and has advised that he will not be cancelling the non-compliance hearing scheduled to commence at 9:00am on Thursday, 15 September 2016.

The Commissioner has advised that if you do not appear via telephone at the non-compliance proceedings at 9:00am this Thursday, 15 September 2016, your application before the Fair Work Commission may be dismissed, without any further notice to you.

You are required to be available on [mobile number] at this time.”

[16] The Non-Compliance Hearing commenced by telephone shortly after 9:00am on 15 September 2016. Ms Sharlee Haines, HR Advisor, appeared on behalf of All Support. There was no appearance by or on behalf of Ms Rix. My Associate attempted to telephone Ms Rix however was unable to make any contact.

[17] During the Non-Compliance Hearing, All Support made an application pursuant to s.399A of the Act for the dismissal of Ms Rix’s application for relief from unfair dismissal.

Application for dismissal

[18] Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

[19] In light of the history of the proceedings outlined above, the failure of Ms Rix to comply with the directions issued on 21 July 2016 and 23 August 2016, and failure to attend the Non-Compliance Hearing held by the Commission on 15 September 2016, I am satisfied that Ms Rix has unreasonably failed to comply with a direction of the Commission and has failed to attend a hearing held by the Commission, in relation to her unfair dismissal application.

[20] I therefore exercise my discretion pursuant to section 399A(1)(a) and (b) of the Act to dismiss Ms Rix’s unfair dismissal application.

[21] I vacate the hearing listed for 19 and 20 September 2016.

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