Ms Natasha O'Neill v My Baker Pty Ltd T/A My Baker

[2012] FWA 9301

[2012] FWA 9301

FAIR WORK AUSTRALIA

DECISION

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

Ms Natasha O'Neill
v
My Baker Pty Ltd T/A My Baker
(U2012/10822)

COMMISSIONER MACDONALD SYDNEY, 7 NOVEMBER 2012

Application for unfair dismissal remedy - Jurisdictional Hearing - Applicant failed to file evidence - Applicant failed to attend Hearing - Respondent attended - Respondent made application to FWA to dismiss unfair dismissal application for want of prosecution - FWA sought to make contact with Applicant - no response - Application dismissed for want of prosecution

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged in Sydney on 26 June 2012. The application was made by Natasha O’Neill (the Applicant) against My Baker Pty Ltd t/as My Baker (the Respondent/the Employer).

[2] Correspondence of 23 July 2012 from Fair Work Australia (FWA) advised that the matter was listed for conciliation before an FWA Conciliator on 2 August 2012.

[3] Correspondence of 30 July from FWA to the Respondent advised of the requirement to put on an Employer’s Response to Application for Unfair Dismissal Remedy (Form F3). The Form F3 was submitted on 31 July and listed jurisdictional objections to the unfair dismissal application.

[4] On 31 July, FWA sent correspondence to the parties advising of the cancellation of the conciliation of 2 August and further advising that the matter would be listed for a formal proceeding and directions.

[5] FWA advised the parties on 10 August of Directions for the filing of an outline of submissions and witness statements and any other documentary material that might be relied upon in respect of the Respondent’s jurisdictional objections: Minimum Employment Period - Small Business; Casual Employee not engaged on a regular and systematic basis. The Jurisdictional Hearing was set down for 18 and 19 September in Newcastle.

[6] The Applicant and Respondent were required to file by 24 August 2012.

[7] On 22 August, FWA telephoned for the Applicant as to whether her application was still proceeding and hence submitting material by 24 August. The Applicant’s mobile message said, “the person is not accepting incoming calls”. A message was not able to be left.

[8] Neither the Applicant, nor the Respondent, filed any material by 24 August, pursuant to the Directions issued by FWA.

[9] On 3 September, FWA attempted telephonic contact with the Applicant with respect to not receiving her submissions by 24 August. The mobile phone gave the same message as for the 22 August enquiry. On that same date of 3 September, FWA sent an email to the Applicant about the non-filing and requesting she contact FWA.

[10] Also on 3 September, FWA left messages for the Respondent to contact FWA as to the non-filing of material as per the Directions.

[11] On 4 September 2012, FWA issued a notice to both parties, advising that the two day hearing would only be a one day (18 September) hearing.

[12] The Respondent engaged a solicitor (Ms Christie Howson). The Respondent’s material for the Jurisdictional Hearing was filed on 6 September.

[13] On 12 September, FWA advised that the Jurisdictional hearing for 18 September had been cancelled due to the unavailability of a Tribunal member. That advice was left on the Applicant’s mobile phone on 12 September. As well, an enquiry was left as to whether the Applicant had filed any material. FWA also spoke to Ms Howson who asked if the unfair dismissal application could be struck out prior to the Jurisdictional Hearing. She was advised to put her request in writing to FWA. The new Jurisdictional Hearing date(s) would be 23 - 24 - 25 October 2012.

[14] On 17 September, FWA tried to contact the Applicant but her mobile phone was not taking incoming calls.

[15] On 25 September, FWA left a voicemail message for the Applicant enquiring about her Submissions and requested a call back.

[16] On 8 October, FWA attempted to contact the Applicant but the line was busy and FWA was unable to leave a voicemail message.

[17] On 8 October, Ms Howson filed her Notice of Representative Commencing to Act application. (Form F53)

[18] On 11 October, FWA advised in writing that the Jurisdictional Hearing was set down for one day only: 9.00 am, Thursday 25 October 2012.

[19] On 16 October, my Associate emailed the Applicant requesting she make contact with the Associate regarding the 25 October Hearing.

[20] In respect of my Associate’s enquiry and other requests by FWA personnel to the Applicant, no response was forthcoming.

[21] The Hearing took place before myself (Macdonald C) in Newcastle on 25 October 2012. The Respondent was represented by Ms Howson, solicitor. There was no appearance by the Applicant. Ms Howson put forward submissions in support of a dismissal of the application on the ground of want of prosecution.

[22] Subsequent to the hearing, my office emailed the Applicant on Tuesday, 30 October 2012. Nothing had been heard from the Applicant between the Hearing date of 25 October 2012 and the despatching of the email.

[23] The email referred to the Applicant’s non-attendance and the Respondent’s application to dismiss for want of prosecution. The email sought a response by 5.00 pm, Friday 2 November and failing a response the Commissioner would consider and issue a Decision concerning the Respondent’s application to dismiss for want of prosecution.

[24] There was no response by the Applicant to this email communiqué.

CONCLUSION

[25] The Applicant filed an unfair dismissal application on 26 June 2012. Belatedly, the Respondent put on its Employer’s Response (Form F3) which listed jurisdictional objections to the unfair dismissal application.

[26] FWA advised the parties on 10 August of Directions for the filing of their respective cases to deal with the jurisdictional objections raised by the Respondent. Both parties were to file on the same day, 24 August 2012. Both parties failed to do so. The Respondent did file material on 6 September.

[27] No material was filed by the Applicant. FWA began its first attempt on 22 August to make contact with the Applicant but to no avail. Subsequent to that date, FWA has sought telephonic and email contact with the Applicant but to no avail. My office attempted contact with the Applicant both before and after the Hearing but without any response.

[28] The state of play then, as at the Hearing, was that the applicant had not filed any material and no contact could be made with the Applicant.

[29] The Respondent seeks dismissal of the application on the ground of want of prosecution - section 587 of the Act.

[30] The Full Bench in L. Sayer v Melsteel Pty Ltd (Giudice J., President, McCarthy DP and Simpson C - [2011] FWAFB 7498) considered an appeal against a decision of Roe C who dismissed an unfair dismissal application for want of prosecution.

[31] In that case, Sayer filed his material but did not attend the hearing of 7 July. The next day, 8 July, Roe C dismissed Sayer’s unfair dismissal application. In doing so, the Commissioner accepted the case put by the Respondent on the basis that there was no contrary evidence. The Commissioner’s decision considered section 387(a) and found that there was a valid reason for dismissal.

[32] Sayer appealed that decision and argued he was denied the opportunity to present his case.

[33] The Full Bench said that the terms of section 387 are mandatory. Thus, once “the Commission embarked on a consideration of whether the dismissal was harsh, unjust or unreasonable he was obliged to ‘take into account’ each of the criteria in s.387 to the extent they are relevant.” (para. 4)

[34] However, the Full Bench were of the view that s.387 (the criteria contained therein) only applied if FWA embarked on a consideration of the issues between the parties to an application. The Bench gave the extreme example of where s.387 would not need to be considered: “if an applicant abandons their case - ignores notices of listings and directions - the application can be dismissed without the need to apply s.387”. Seems to me that the ignoring of notices of listings is a reference to non-attendance at the hearing. (The Bench stressed that its view was conditioned by that fact that the applicant (Sayer) did not attend the hearing.)

[35] The extreme example given by the Full Bench is the circumstance under my consideration: no material was filed by the Applicant (and hence no case advanced); no appearance at the Hearing by the Applicant.

[36] I rely upon all of the circumstances of this case set out below to dismiss the application for want of prosecution:

(a) the Applicant did not file any material per the directions; and

(b) the Applicant did not respond to any email or telephonic communications from FWA or my Chambers prior to the Hearing; and

(c) the Applicant did not attend the Hearing; and

(d) the Applicant did not contact my Chambers subsequent to the Hearing; and

(e) the Applicant did not respond to an email issued out of my Chambers, subsequent to the Hearing.

[37] Accordingly, the Applicant’s unfair dismissal application is dismissed for want of prosecution, pursuant to section 587(3) of the Act. An Order will issue accordingly.

COMMISSIONER

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