Ms Natasha Waugh v Gails on Sydney Pty Ltd T/A Gail's on Sydney

[2016] FWC 3474

[2016] FWC 3474

FAIR WORK COMMISSION

DECISION

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

Ms Natasha Waugh
v
Gails on Sydney Pty Ltd T/A Gail's on Sydney
(U2015/14911)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 31 MAY 2016

Application for relief from unfair dismissal.

[1] Ms Waugh has made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) in relation to her dismissal from Gails on Sydney Pty Ltd T/A Gail's on Sydney, a hairdressing salon in Mackay, Queensland.

[2] Ms Waugh’s submissions in relation to this application were due on 24 May 2016. Ms Waugh had been notified to that effect following the Directions and Listing sent to her on 8 May 2016.

[3] An effort was made to contact Ms Waugh by telephone on 23 May 2016 to remind her that her submissions were due the following day. A voice message was left on her nominated mobile telephone number to this effect.

[4] Ms Waugh’s submissions were not filed with the Commission by midday 24 May 2016 in compliance with the Directions timetable.

[5] Following non receipt of Ms Waugh’s submissions, various voice messages were left on her home and mobile telephones alerting her to the circumstances and encouraging her to contact Chambers promptly.

[6] Further, on 24 May 2016, the following correspondence was directed to Ms Waugh’s email address and sent by express courier to her home address:

“Dear Ms Waugh

RE: U2015/14911 Natasha Waugh v Gails on Sydney Pty Ltd T/A Gail's on Sydney

The Fair Work Commission has listed your matter to be heard on 14 June 2016.

As a part of that Listing and the accompanying Directions (see attached), you were required to make submissions to support your application for unfair dismissal by no later than Noon today 24 May 2016.

The Listing and Directions were sent to both the email and residential address you provided to the Commission when making your application for relief from unfair dismissal.

The Commission did not receive any submissions in accordance with these Directions to support your application.

As such, Senior Deputy Richards advises the following;

“In order to assist in determining this application, can you please provide submissions in relation to the following;

Can you please provide reasons for your non-submission of documents in accordance with the Directions made by the Fair Work Commission.

2.      Please provide information and evidence to support your application for unfair dismissal remedy.

3. Please make submissions as to why your application should not be dismissed under section 587 of the Fair Work Act 2009 (an extract of which has been provided below).

A response to these enquiries must be made by 5pm Monday 30 May 2016 or the matter may be determined with regard to section 587 of the Act and/or by the information presently before the Commission.”

[7] By 30 May 2016, Ms Waugh had not contacted Chambers or filed any submissions.

[8] However, in the morning of Tuesday, 31 May 2016, Ms Waugh telephoned my Associate and enquired as to the status of her application, and indicated that she had been in ill health and had not responded to any of the emails or messages directed to her (though she was aware of those emails and telephone messages). Ms Waugh indicated that she would place the details of her circumstances in writing that day and forward them to myself for consideration.

[9] No such email – or any other communication - was received from Ms Waugh by close of business Tuesday 31 May 2016.

[10] No email – or any other communication - was received from Ms Waugh by close of business Wednesday 1 June 2016.

Consideration

[11] Ms Waugh has not evinced sufficient effort, indeed any effort, to continue to pursue the application she has agitated, despite the Commission's approaches.

[12] Section 587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the "wide" scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at [33]).

[13] In the Full Bench decision in Sayer v Melsteel[2011] FWAFB 7498, the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed to prosecute their case, despite having filed materials. The Full Bench noted (relevantly):

“[16] When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent's case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent's case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

[17] It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner's decision is consistent with that approach.”

[14] In the circumstances now before me, the employer has provided a response to the Applicant's claims by way of its Form F3. The employer's position is that the Applicant was dismissed for failure to follow instruction and direction over a period of some months, resulting in a loss of trust and confidence. The employer, on the face of its claims, has "a defence of substance" against the claims, or at least "a defence to the action.

[15] In the case before me, Ms Waugh, the Applicant, has filed no materials at all. Further, the Respondent has contested Ms Waugh’s claims and has asserted a defence in particular terms against Ms Waugh’s various claims.

[16] The Full Bench in Viavattene v Health Care Australia[2013] FWCFB 2532 commented on the circumstances where an applicant evinces "an unwillingness to participate in proceedings", and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

“[39] [...] There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is a respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended 'to ensure that a 'fair go all round is accorded to both the employer and employee concerned' (s.381).”

Conclusion

[17] I exercise my discretion in this regard in the knowledge that the employer's materials lodged indicate, even if at the prima facie level, a defence against the particular claims as made. The Applicant, Ms Waugh, has failed to prosecute her claim despite being afforded opportunity to do so, and has not filed any materials in accordance with the Directions. Ms Waugh has been provided an opportunity to take corrective action and bring her conduct in compliance, but has not availed herself of that opportunity.

[18] It appears to me that in the circumstances ‘a fair go all around’ would be achieved if I dismissed the application in accordance with s.587 of the Act.

[19] Ms Waugh’s application under s.394 of the Act is dismissed for the above reasons.

SENIOR DEPUTY PRESIDENT

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