Ms Rochelle Andrews v Greenmountain Food Processing Pty Ltd
[2022] FWC 3264
•12 DECEMBER 2022
| [2022] FWC 3264 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Rochelle Andrews
v
Greenmountain Food Processing Pty Ltd
(U2022/9190)
| DEPUTY PRESIDENT LAKE | BRISBANE, 12 DECEMBER 2022 |
Application for an unfair dismissal remedy – application for dismissal of application
pursuant to s.399A – application dismissed
Ms Rochelle Andrews (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Greenmountain Food Processing Pty Ltd (the Respondent). Mr Richard Diqer of IRIQ Law, representative of the Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A(1)(b) of the Act.
Procedural background
On 10 November, this matter was allocated to me.
On 17 November, I issued the following Directions: a hearing on the jurisdictional objection was listed for 10:00am on 13 December. The Applicant was to file their submissions by 4:00pm on 25 November, the Respondent was to file their submissions by 4:00pm on 2 December, and the Applicant was to reply by 4:00pm on 9 December.
The Applicant failed to file any submissions, nor did they contact Chambers by 25 November.
On 28 November at 11:17am, my Chambers received correspondence from the Respondent’s representative.
“Reference is made to the direction of the Deputy President of 17 November 2022, which required the Applicant to file of an outline of submissions, witness statements or other documentary material that the Applicant intends to rely on in respect of the jurisdictional objections by 25 November 2022.
The Respondent has not received a copy of this material.
Can you please confirm whether the Applicant has provided a copy of these materials to Chambers.”
On the same day at 12:55pm, my Chambers responded to the parties, noting that the Applicant had failed to comply with the Directions and not filed submissions. Attached to the correspondence was a copy of the Notice of Listing and Directions issued on 17 November and a blank Form F50.
“Dear parties,
Chambers refers to the Directions that were issued to the parties on Thursday, 17 November 2022 (attached).
The Applicant failed to comply with the Directions by the date specified in those Directions.
In accordance with paragraph [1] of the Directions, the Applicant was required to file in the Commission, and serve on Respondent, by 4.00 PM (QLD Time) on Friday, 25 November 2022 “an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the jurisdictional objection raised by the Respondent”.
As a result of this non-compliance, the Applicant is directed to provide by Tuesday, 29 November 2022 before 4.00 PM (QLD Time):
·explanation and evidence as to why she failed to comply; and
·all material for the hearing.
Failure to do so will result in the Commission considering dismissal of your application.
Ms Andrews, if you do not wish to proceed with the application, you should complete the attached Notice of Discontinuance and forward it to Chambers by Tuesday, 29 November 2022 before 4.00 PM (QLD Time).”
[Emphasis not added]
The Applicant failed to comply with the non-compliance email.
On 30 November at 10:00am, the Respondent’s representative provided the following correspondence.
“Dear Associate
I refer to the Deputy President’s Directions of 28 November 2022 which to my knowledge has not been complied with by the Applicant.
In circumstances where there has been ongoing non compliance with the directions of the Fair Work Commission, the Respondent makes application under s.399(1)(b) that the application be dismissed on the basis that it is not in the interests of the Respondent or the Commission to incur costs where the Applicant has unreasonably failed to comply with a Direction of the Commission and failed to prosecute their case. It is also noted that it may be appropriate for the Deputy President to exercise the power conferred by s.587 as the Applicant has not engaged in the proceedings or prosecuted their case sufficiently such that they have reasonable prospects of success.
Please advise if the Deputy President requires a Form F1 or if this email is sufficient.
Having regard to the above, the Respondent requests that the Directions of 17 November 2022 be stayed until this interim matter is determined.
Given that the Respondent’s material is due 2 December 2022, and the Applicant has yet to file anything, please advise as soon as possible whether the Directions have been stayed.”
At 10:16am, my Chambers responded to the Respondent’s representative confirming that the Directions were stayed, and that the Deputy President requested the application be made using a Form F1.
At 7:41pm, the Respondent’s representative filed their Form F1 requesting that the matter be dismissed pursuant to s.399A(1)(b) of the Act.
On 1 December at 12:03pm, my Chambers acknowledged receipt of the Form F1 and wrote to the parties again, noting the Applicant’s second failure to comply with the Directions. Attached to the correspondence was the Respondent’s Form F1 and a blank Form F50.
“Dear parties,
Chambers has received a Form F1 (attached) from the Respondent to dismiss the application on the grounds below.
Directions were issued to the parties on Thursday, 17 November 2022 (attached).
The Applicant failed to comply with the Directions by the date specified in those Directions.
In accordance with paragraph [1] of the Directions, the Applicant was required to file in the Commission, and serve on Respondent, by 4.00 PM (QLD Time) on Friday, 25 November 2022 “an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the jurisdictional objection raised by the Respondent”.
As a result of this non-compliance, the Applicant was directed to provide by Tuesday, 29 November 2022 before 4.00 PM (QLD Time):
·explanation and evidence as to why she failed to comply; and
·all material for the hearing.
The Applicant again failed to comply with the non-compliance email.
Section 399A of the Fair Work Act 2009 (Cth) 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.
(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.”
The Deputy President will now consider the Respondent’s Form F1. Ms Andrews is required to provide a response to the Respondent’s Form F1 by 12.00 PM (QLD Time) on Monday, 5 December 2022.
Ms Andrews, if you do not intend to proceed with the application you should complete the attached Notice of Discontinuance and forward it to Chambers by 12.00 PM (QLD Time) on Monday, 5 December 2022.”
[Emphasis not added]
Since this direction, the Applicant has not communicated with the Commission.
The Respondent’s submissions
The Respondent in their Form F1 highlighted that the Applicant failed to comply with the Directions of the Commission despite the Applicant being given extra time to comply.
The Respondent sought that the matter be dismissed pursuant to s.399A(1)(b) of the Act or in the alternative, s.587 of the Act.
Legislation
Section 399A of the FW Act 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.
(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.”
Consideration
The Applicant failed to engage in a timely manner with the Commission regarding her submissions.
Since being allocated this matter, I have received no communication from the Applicant.
In spite of Chambers attempting to communicate with the Applicant on 28 November and 1 December, the Applicant did not engage.
The failure to provide submissions, nor provide reasons why she has not followed the Directions has resulted in the Respondent making an application for the matter to be dismissed pursuant to s.399A of the Act.
The process undertaken has been in accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent as a Form F1, and a copy was served on the Applicant. The Applicant had five days to provide a response to the application and was advised that a failure to do so may result in their application being dismissed.
I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed for failure to follow a Direction from the Commission. Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
[1] [2021] FWCFB 875, [57].
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