Ms Teghan Garvey v West Wing Aviation Pty Ltd

[2013] FWC 8708

[2013] FWC 8708

The attached document replaces the document previously issued with the above code on 13 November 2013.

Changes have been made to correct paragraph numbering throughout the decision.

N. Burke

Associate to Commissioner Spencer

Dated 14 November 2013

[2013] FWC 8708

FAIR WORK COMMISSION

DECISION

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

Ms Teghan Garvey
v
West Wing Aviation Pty Ltd
(U2013/11347)

COMMISSIONER SPENCER BRISBANE, 13 NOVEMBER 2013

Application for relief from unfair dismissal - application to dismiss s.399A - failure to attend a conference in relation to the application

[1] This decision relates to an application, filed on 10 July 2013, by Ms Teghan Garvey (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that the termination of her employment from West Wing Aviation Pty Ltd (the Respondent) was harsh, unjust or unreasonable (the application).

[2] The Respondent filed a Form F3 Employer’s Response to Application for Unfair Dismissal Remedy in response to the application.

[3] The application was listed for conciliation before a Fair Work Conciliator but the conciliation could not take place, as the Applicant was not present and her representative was unable to obtain instructions, so the matter was not resolved. The notice of listing was also sent to the Applicant’s representative on the record at that time.

Background

[4] A notice of listing was issued in this matter on 24 September 2013. The notice of listing was sent to the Applicant by email (as provided on the originating application) and by letter sent to her home address.

[5] The notice of listing contained the following warning:

“Failure to attend at this listing may result in the application being dismissed, or the matter being progressed or determined in the absence of a party.”

[6] On 30 September 2013, the Commission received correspondence from the Applicant’s representatives, providing notice that they were ceasing to act for the Applicant.

[7] On the date and time listed for the matter to be brought before the Commission for Conference, the Applicant was contacted several times on the telephone number provided. The Applicant was unable to be contacted.

[8] On 17 October 2013, a letter was sent to the Applicant’s email address and home address, advising the Applicant that:

“...given your non-attendance by telephone on both occasions, the Respondent has sought that your application be dismissed.

The Commissioner is considering dismissing your application.

Please respond by midday Friday, 25 October 2013 with any reasoning in relation to your non-attendance on both occasions and why your application should not be dismissed. You can respond be email or by post.”

[9] No correspondence or contact has been received by the Applicant.

Legislation

[10] Section 399A of the 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.

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.

[11] The Commission also has general powers to dismiss an application pursuant to s.587 of the Act which 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.

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.

Consideration

[12] The Respondent has applied for the Commission to dismiss the Applicant’s application.

[13] A review of the Commission’s file in this matter reveals that there has been no contact made by the Applicant personally with the Commission at any stage. The record indicates that the Applicant’s (then) Representative contacted the Commission on the day of the original conciliation listing to advise that the Applicant had not attended at their office to participate in the listing and was not able to be contacted.

[14] All correspondence and notices to the Applicant have been sent electronically and in hardcopy, to the relevant contact details provided on the originating application, and as confirmed by the Applicant’s representative at the time of ceasing to act. The Commission’s file indicates no attempts made by the Applicant to contact the Commission, nor any attempt to return the contact made by the Commission.

[15] The Applicant has not provided any reasons for her failure to participate in accordance with the correspondence of 17 October 2013.

Conclusion

[16] The Applicant has failed to attend a Conference, held by the Commission, in relation to this application.

[17] The Applicant has provided no reasons for such failure. The Applicant’s failure is unreasonable.

[18] The application is dismissed pursuant to s.399A(1)(a) of the Act.

[19] I Order accordingly.

COMMISSIONER

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