Ms Tahnille DeMaria v Carry on Cafe
[2022] FWC 1888
•20 JULY 2022
| [2022] FWC 1888 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tahnille DeMaria
v
Carry on Cafe
(U2022/2682)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 20 JULY 2022 |
Application under s 399A – failure to attend a hearing – application dismissed
This decision concerns an application made under s 399A of the Fair Work Act 2009 (Cth) (Act) by Carry on Café (respondent) to dismiss an unfair dismissal application brought against it by Ms Tahnille DeMaria.
For the reasons that follow, the respondent’s application under s 399A is granted. Ms DeMaria’s application for an unfair dismissal remedy is dismissed.
Procedural context
On 2 March 2022, Ms DeMaria made an application for an unfair dismissal remedy pursuant to s 394 of the Act. Ms DeMaria alleges she was unfairly dismissed by the respondent.
The application was conciliated on 2 May 2022 however it did not resolve. The matter was subsequently referred to me for determination of the substantive application, which included a jurisdictional objection raised by the respondent.
Directions were issued for the filing of materials to resolve the jurisdictional objection on 3 May 2022. Both parties filed materials prior to the hearing.
The hearing was listed on 29 June 2022 to take place online through Microsoft Teams. Prior to the hearing, a court book was sent to the parties comprising all the materials filed in the application to date.
On the day of the hearing, the respondent connected to the virtual hearing room but the applicant did not. My associate made around eleven attempts to call the applicant and left a voicemail indicating that the hearing was scheduled in accordance with the amended notice of listing sent to the applicant and respondent on 27 May 2022. The amended notice of listing was effective in joining the respondent to the hearing.
The matter was called on at around 10:17am. The respondent made an application to dismiss the application for the applicant’s non-attendance at the hearing, which is taken to be an application pursuant to s 399A of the Act (s 399A Application). I waived compliance with the Fair Work Commission Rules 2013[1] and accepted the oral application made by the respondent.
After the hearing, Ms DeMaria was sent an email setting out the attempts made to join her to the hearing and the respondent’s s 399A Application. The email contained directions for the determination of the s 399A Application. The directions relevantly stated as follows:
Deputy President Millhouse directs you to file with the Commission and serve on the respondent an explanation as to why the Commission should not dismiss your unfair dismissal application. You must file and serve evidence or other material to support your reasons. For example, if you are or have been unwell the Commission requires a medical certificate. This material is required by close of business Thursday 7 July 2022.
The respondent is invited to submit any materials in reply by close of business Wednesday 13 July 2022.
(emphasis added)
Ms DeMaria responded shortly after, stating as follows:
Please send me the application to reschedule, we are so sorry for missing the hearing today as bubs was unwell over night and was getting checked up in the hospital. I highly apologise for wasting both yours and David’s time today
My Chambers responded on 30 June 2022, advising:
Thank you for your email. In light of your non-attendance at the hearing today, you are required to provide written submissions which:
1. Provide evidence or documentary material which supports your non-attendance (for instance, a medical certificate from the hospital that treated your unwell child today); and
2. Explain why the Commission should not dismiss your unfair dismissal application for your non-attendance.
You have until Thursday 7 July 2022 to do this.
Ms DeMaria responded shortly after stating “I’ll get the documents all for you before then.” However, Ms DeMaria did not file any materials in response to the s 399A Application by 7 July 2022 or at all.
My Chambers made unsuccessful attempts to contact Ms DeMaria by telephone on 8 July 2022, being the day after Ms DeMaria was directed to file her responsive material. This included leaving a voice message on her nominated telephone number. An email was sent to the parties the same day by my Chambers confirming that Ms DeMaria had not filed any material in accordance with the directions. The email invited the respondent to advise whether it still sought to file submissions and advised that otherwise “…the matter will be determined on the material currently before the Commission.”
By way of an email on 9 July 2022, the respondent filed submissions in which it pressed its request for the dismissal of Ms DeMaria’s unfair dismissal application pursuant to s 399A of the Act.
Consideration
Relevantly, s 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.
....
(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.
Section 399A was the subject of a Full Bench decision in Lockyear v Cox[2] where it was relevantly said that:
[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
Contrary to the directions, Ms DeMaria has not filed any supporting materials or responded to the s 399A Application. Nor has Ms DeMaria taken any steps to engage with the Commission in the ten days since the respondent reiterated its request for the dismissal of Ms DeMaria’s application pursuant to s 399A of the Act.
I consider that the time afforded to Ms DeMaria to respond, and the attempts made to contact her to advise of the missed deadline, reflect all reasonable steps required by the Commission in the circumstances. It follows that the first three steps set out in Lockyear v Cox have been met. I turn now to consider the s 399A Application.
While Ms DeMaria apologised for her non-attendance at the hearing by email to my Chambers on 29 June 2022, she has not provided evidentiary support for the reason proffered for her non-attendance as directed on 29 June and 30 June 2022. I therefore conclude that Ms DeMaria has not provided a reasonable explanation for her non-attendance. It follows that I am satisfied for the purposes of s 399A(1)(a) of the Act that Ms DeMaria’s failure to attend the hearing on 29 June 2022 in relation to her application for an unfair dismissal remedy was unreasonable.
Accordingly, I am empowered to exercise the discretion afforded under s 399A of the Act to dismiss Ms DeMaria’s application for an unfair dismissal remedy. While such discretion is to be exercised with caution, I am satisfied that that it should be exercised in the following circumstances:
(a)Ms DeMaria unreasonably failed to attend the hearing in relation to her application for an unfair dismissal remedy; and
(b)the Commission has afforded Ms DeMaria ample opportunity to respond to the s 399A Application and she has been on notice of the consequences of her non-compliance since 29 June 2022, following her failure to attend the hearing in respect of her unfair dismissal application.
Conclusion and disposition
For the reasons given, the respondent’s application under s 399A is granted. Ms DeMaria’s application for an unfair dismissal remedy is dismissed pursuant to s 399A(1) of the Act.
DEPUTY PRESIDENT
[1] Rule 6(1)
[2] [2021] FWCFB 875
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