Ms Stephanie Forsyth v LSH Auto (Australia) Pty Ltd T/A AMG Sydney

[2018] FWC 5882

[2018] FWC 5882

The attached document replaces the document previously issued with the above code on 24 October 2018.

Amendment of paragraph numbering

Associate to Deputy President Bull

24 October 2018

[2018] FWC 5882

FAIR WORK COMMISSION

DECISION

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

Ms Stephanie Forsyth
v
LSH Auto (Australia) Pty Ltd T/A AMG Sydney
(U2018/6551)

DEPUTY PRESIDENT BULL SYDNEY, 24 OCTOBER 2018

Application for an unfair dismissal remedy – Fair Work Act 2009 (Cth) s.399A – application by respondent to dismiss matter because applicant has failed to comply with directions –Application dismissed for want of prosecution.

[1] On 25 June 2018, Ms Stephanie Forsyth (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been unfairly dismissed by LSH Auto (Australia) Pty Ltd Trading as AMG Sydney (the employer). The employer objected to the claim on the basis that the applicant had not been dismissed.

Background

[2] The matter was listed before a conciliator for telephone conciliation on 24 July 2018. On that occasion, the matter was not resolved and the conciliator advised the parties that if the applicant did not advise the conciliator whether she wished to withdraw her application by close of business on Friday 27 July 2018, the matter would proceed to the next stage.

[3] The application was subsequently forwarded to my chambers. The matter was listed for a directions teleconference for 31 August 2018, and for a jurisdictional hearing on 23 October 2018.

[4] On 31 August 2018, the teleconference took place. The employer and their legal representative took part in the teleconference. At the time of the teleconference, three attempts were made to contact the applicant on her mobile number provided in her application. On all three attempts, the applicant did not answer and there was no option available to leave a message.

[5] Immediately after the teleconference, my chambers emailed the applicant at her email address to inform her that the scheduled teleconference had taken place and that three attempts had been made to contact her on her mobile telephone. The correspondence also requested the applicant to confirm with chambers whether she wished to pursue her application, and if so, to confirm by no later than 4:00pm on 6 September 2018.

[6] On 6 September 2018, my chambers received a telephone call from the employer’s solicitor, Mr Vitale, asking whether the applicant had confirmed with chambers whether she wished to pursue the application. My chambers confirmed that no such correspondence had been received from the applicant.

[7] Later that day, the respondent lodged an application pursuant to s.399A of the Act that the matter be dismissed on the basis that the applicant had failed to attend the conciliation conference conducted by the Commission.

[8] The Commission subsequently made further unsuccessful attempts to contact the applicant via telephone. The applicant did not reply to the voice mails left advising that her application may be dismissed if she did not respond. The applicant was also advised via email that her failure to prosecute her application may lead to its dismissal without further notice.

[9] On 21 September 2018, my chambers received email correspondence from the applicant confirming that she would not be continuing with her application due to personal health reasons and as she had been in hospital for the ‘past 2 months’. On 24 September 2018, my chambers by email requested the applicant file a notice of discontinuance which at the date of this decision has not occurred.

[10] On 23 October 2018, the jurisdictional hearing was scheduled to take place at 10am in Sydney. There was no appearance by either party. My Associate remained in the courtroom until 10:18am, at which time the courtroom was closed.

Legislation

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

“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

[12] I am satisfied that the applicant failed to attend the listed conciliation conference, the listed hearing or file a notice of discontinuance. However, having regard to the applicant’s lengthy hospitalisation and her advice that she no longer wished to continue with her application, despite not having filed a notice of discontinuance as requested, I am not satisfied that she has unreasonably:

○ failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

○ failed to comply with a direction or order of the FWC relating to the application; or

○ failed to discontinue the application after a settlement agreement has been concluded.

[13] However based on the circumstances outlined above, I am satisfied Ms Forsyth no longer wishes to prosecute her application.

[14] In accordance with s.587 of the Act, the application is dismissed for want of prosecution.

DEPUTY PRESIDENT

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