Ms Stephanie Sampson v Hillside (Australia New Media) Pty Limited

[2022] FWC 1635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Stephanie Sampson
v

Hillside (Australia New Media) Pty Limited

(U2022/4621)

COMMISSIONER RIORDAN

SYDNEY, 27 JUNE 2022

Application for an unfair dismissal remedy

Ms Stephanie Sampson (the Applicant) lodged an unfair dismissal application (the Application) pursuant to s.394 of the Fair Work Act 2009 (the Act) on 20 April 2022 claiming that she was unfairly dismissed by Hillside (Australia New Media) Pty Limited (the Respondent) on 1 April 2022.

The matter was listed for Conciliation before a Fair Work Commission (the Commission) staff conciliator on 7 June 2022, however, was unable to proceed due to the unavailability of the Applicant.

The matter was allocated to my Chambers on 14 June 2022. A notice of listing was issued on 15 June 2022, for a Conciliation Conference to be held on 17 June 2022. The notice of listing requested that the parties confirm their attendance and contact details ahead of the listing date.

On 15 June 2022, my Chambers also emailed the parties directly requesting that they confirm they will be available on the listed date and time, and to confirm the number they will be dialling in on. The Respondent confirmed their availability via reply email the same day. A response was not received from the Applicant.

The listing was scheduled to commence at 1:30pm ACST and 2pm AEST on 17 June 2022. My Associate made three attempted calls to the Applicant’s mobile number between 1:57pm and 2:15pm AEST on 17 June 2022, with three voice messages left. The Applicant was unable to be dialled into the Conference and did not return Chambers’ calls.

The Respondent and its representative successfully dialled themselves into the Conference line, however, due to the Applicant’s unavailability the Conference was unable to proceed.

At 2:29pm AEST on 15 June 2022, my Chambers sent a non-attendance letter to the Applicant by email, copied to the Respondent’s email address. That letter provided:

“Dear Ms Sampson,

I refer to the Notice of Listing that was issued on 15 June 2022 to notify you that the above-mentioned matter was listed for Conference/Directions via telephone before Commissioner Riordan today, 17 June 2022 at 2pm AEST (1.30pm NT time).

Chambers also wrote to you by email on 15 June 2022, seeking confirmation of your availability and attendance for the conference of 17 June 2022. No response was received from you.

At the time of the Conference, Chambers attempted to call you on your listed mobile number between 1.27pm NT time and 1.45pm NT time, with two voice messages left seeking that you make yourself available. A further voice message was left following the 1.45pm attempt, advising that a letter would shortly follow to your email address (this correspondence).

The Respondent was advised that on the basis of your non-attendance, the matter would be adjourned, pending contact from you to Chambers.

Please be advised that you have seven days to provide a satisfactory explanation as to why you failed to participate in the teleconference. This is formal notification that if you fail to provide a satisfactory response in writing, the application will be dismissed and the file closed.”

The letter also invited the Applicant to contact Chambers’ telephone number, to discuss the matter further.

The Applicant has not provided any formal response or reasons for her failure to attend the Conciliation Conference as required by the non-attendance letter.

Section 587(1) of the Act provides:

“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”

In the circumstances, I have decided to dismiss the application for want of prosecution.

I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Ms Stephanie Sampson versus Hillside (Australia New Media) Pty Limited, the applicant, Ms Sampson, sought an unfair dismissal remedy under the Fair Work Act 2009. Ms Sampson claimed that she was dismissed by the respondent, Hillside, on 1 April 2022. The application was listed for conciliation before the Commission, however, it was unable to proceed due to Ms Sampson’s unavailability. The matter was subsequently allocated to the Commissioner Riordan’s chambers. An attempt was made to reach Ms Sampson via phone and email to confirm her attendance at the conciliation conference, however, she did not respond. The conference was unable to proceed due to Ms Sampson’s non-attendance, and a non-attendance letter was sent to her, requesting an explanation for her failure to participate. Ms Sampson did not respond to the letter.

The legal issue before the court was whether the application should be dismissed for want of prosecution, under section 587(1) of the Fair Work Act 2009. The court considered the circumstances of the case, including the Applicant's failure to attend the conciliation conference despite multiple attempts to contact her. The court noted that the Applicant had not provided any explanation for her non-attendance, and that the application had no reasonable prospects of success. The court concluded that the application should be dismissed for want of prosecution, as the Applicant had failed to participate in the proceedings as required.

The Commissioner dismissed the application for want of prosecution. The Commissioner found that the Applicant had failed to attend the conciliation conference despite multiple attempts to contact her, and that she had not provided any explanation for her non-attendance. The Commissioner concluded that the application had no reasonable prospects of success, and that it should be dismissed under section 587(1) of the Fair Work Act 2009. The Commissioner also noted that the dismissal of the application was not on the grounds that it was frivolous or vexatious, as the Commissioner was required to consider under section 587(2) of the Act.

The Commissioner ordered that the application be dismissed and the file closed. The dismissal of the application was without prejudice to the Applicant's right to lodge a new application in the future, if she wished to do so. The Commissioner also noted that the dismissal of the application was not a finding on the merits of the case, and that it did not prevent the Applicant from pursuing other remedies available to her. The Commissioner emphasised the importance of participants in Fair Work Commission proceedings attending conferences and complying with the requirements of the Act.

CaseChat Overview and Summary

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