Ms Tarren Williams v Pacific Brands

[2014] FWC 2305

[2014] FWC 2305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Tarren Williams
v
Pacific Brands
(C2013/7739)

COMMISSIONER ROE MELBOURNE, 7 APRIL 2014

Application to deal with contraventions involving dismissal.

[1] This Application was made on 17 December 2013. On 23 December 2013 a notice of listing was sent for a conference pursuant to Section 368 of the Fair Work Act 2009 (the Act) to be held on 14 January 2014. The alleged employer in this matter provided a response to the allegations on 8 January 2014 and a copy of that response was provided to the Applicant. The Applicant failed to attend the conference on 14 January 2014. My Associate attempted without success to contact the Applicant on a number of occasions using the contact details provided by the Applicant. We then wrote the Applicant asking her to provide reasons for her non-attendance and reasons why we should not dismiss the application pursuant to Section 587 of the Act for want of prosecution.

[2] The Applicant responded on 19 January 2014 advising that she “missed my conference on the date stated as my great grandmother was admitted to hospital the week before and sadly passed away due to cancer.” I was not satisfied that this response explained the reasons for non-attendance and requested further information in correspondence dated 20 January 2014 as to whether or not the Applicant was continuing with the matter, what her response was to the employer objection that they were not and never had been the employer and why the situation in respect to her great grandmother prevented her from attending the conference. We corresponded with the Applicant on five further occasions prior to receiving full responses to the matters raised. Finally on 7 March 2014 the Applicant responded conceding that the relationship between the death of her great grandmother and failure to attend the conference was “I was no in the correct headspace for a case conference and the meeting had actually slipped my mind” and also conceding that “I did work for pacific brands through an external labour hire group that being programmed integrated”.

[3] I advised both parties on 7 March 2014 that I was not in a position to certify that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful.

[4] The Applicant has accepted that she was never employed by the Respondent, Pacific Brands, and therefore could not have been dismissed by Pacific Brands. The Applicant says that she was employed by Programmed Integrated but does not allege that her employment with Programmed Integrated was terminated in contravention of the Act and has not brought a Section 365 Application against Programmed Integrated.  

[5] I agreed to schedule a further conference for 14 March 2014; however, this conference was postponed as the Applicant said that she had already booked work for the listed date. 16 days notice was given of the rescheduled conference at 2PM on Friday 28 March 2014. At 12.33 pm on that day the Applicant advised that she had been in NSW since Monday assisting her step daughter and that she flew home in the early hours of Friday morning and that she would have to “cancel today’s meeting.”  There is no suggestion that the Applicant was unable to attend the conference rather it appears that in the circumstances she had decided that she was not going to attend the conference.

[6] Section 587 of the Act provides as follows:

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] We advised the Respondent that the conference was cancelled and wrote to both parties on 28 March 2014 advising that:

“Subject to consideration of any further submission the Commissioner is of the view that the Fair Work Commission has taken all reasonable steps to comply with its obligations under Section 368 to “conduct a conference to deal with the dispute.”

The Commission in conducting itself must have regard to the obligations in Section 577 and Section 578 of the Act. Subject to consideration of any further submission which may be made the Commissioner is of the preliminary view that it would not be consistent with fairness and equity or the obligation to act in a quick, informal manner which avoids unnecessary technicalities for this matter to be further delayed. The Commissioner is of the preliminary view that the matter should be dismissed pursuant to Section 587 for want of effective prosecution. The Commissioner is not acting pursuant to the matters listed in Section 587(1) (a), (b) or (c) but pursuant to the general power under Section 587(1).

The latest conference was scheduled to suit the convenience of the Applicant and with adequate notice for 2pm on Friday 28 March 2014. The Applicant failed to attend the conference scheduled on 14 January 2014 and provided no advance notification. It took the Applicant until 7 March 2014 and four pieces of correspondence from FWC to provide response to the questions raised about her non-attendance at the original conference. A further conference was then scheduled for 14 March and then this conference was postponed as the Applicant said that she had already booked for the listed date. 16 days notice was given of the rescheduled conference on 28 March 2014.

The Applicant has seven days, that is until 4 April 2014, to provide any submission she may wish to make as to why the Commissioner should not dismiss the Application for want of effective prosecution.  The Respondent is free to also make any submission they may wish to make prior to that date. The Commissioner intends to make a decision on the basis on any material received prior to that date.”

[8] The Respondent provided a submission strongly arguing that it should not be further inconvenienced in respect to this matter. The Applicant provided no further submission.

[9] For the reasons foreshadowed in the correspondence to the Applicant I have decided to dismiss the Application in this matter pursuant to Section 587(1) of the Act.

COMMISSIONER

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