Narelle Nichols v Hotel Mildura Holdings Pty Ltd T/A Mercure Hotel Mildura

[2021] FWC 6476

[2021] FWC 6476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Narelle Nichols
v
Hotel Mildura Holdings Pty Ltd T/A Mercure Hotel Mildura
(U2021/7607)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 NOVEMBER 2021

Application for an unfair dismissal remedy.

[1] On 27 August 2021, Ms Narelle Nichols made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In her Form F2 – Unfair Dismissal Application (Form F2), Ms Nichols said her employment had been terminated by Hotel Mildura Hotel Mildura Holdings Pty Ltd T/A Mercure Hotel Mildura (Respondent) on 10 August 2021.

[2] On 27 September 2021 a telephone conciliation conducted by a staff conciliator from Commission did not resolve the matter.

[3] The matter was then allocated to me on 7 October 2021 and on 8 October 2021 I listed a Mention to take place at 9.30am on 12 October 2021. I also issued Directions for the filing and serving of material by the parties where the Respondent was directed to file and serve its material by no later than 3.00pm on 22 October 2021 and Ms Nichols was to file and serve her material by no later than 3.00pm on 5 November 2021. The Notice of Listing and accompanying Directions were sent to the parties’ nominated email addresses.

[4] On 10 October 2021 Ms Nichols emailed my chambers to advise that she was not available to attend the Mention at 9.30am on 12 October 2021 as she was now working in a full-time position and was only available after 4.00pm on weekdays.

[5] To accommodate Ms Nichols unavailability, the Mention was relisted to commence at 4.45pm on Wednesday 13 October 2021 and the parties were advised via email of the new time and date. A message was also left on Ms Nichols’ nominated phone number.

[6] The Telephone Mention proceeded on 13 October 2021. My Chambers were unable to reach Ms Nichols on her nominated telephone number despite three attempts to do so. Voice messages were left.

[7] At this stage, no emails sent from the Commission to Ms Nichols received the response that they were “undeliverable”.

[8] In accordance with the Directions, the Respondent filed and served its material on 20 October 2021. Subsequently I determined that the matter should be the subject of a Member Assisted Conciliation to be held on 15 November 2021 and an email to the parties advising of this was sent on 4 November 2021. My Chambers received a response that the email to Ms Nichols was “undeliverable”. A voice message was then left on Ms Nichols’ mobile number to call Chambers urgently and a further attempt to contact Ms Nichols on her landline was met with an automated response that the phone number had been disconnected. Accordingly, the Notice of Listing advising of the Member Assisted Conciliation was sent via Express Post to Ms Nichols’ nominated postal address.

[9] As no material was filed by Ms Nichols in compliance with the Directions, an email was sent on 9 November 2021 at 10.38am to advise that the matter would be listed for a Non-Compliance Hearing by telephone on Friday 12 November 2021 at 12.00pm. The parties were requested to provide their telephone numbers in advance so that they could be contacted for the Non-Compliance Hearing. As the email to Ms Nichols was again returned as “undeliverable”, a copy of it was sent via Express Post to Ms Nichols’ postal address. Subsequently a voice message was left on Ms Nichols mobile phone number to call Chambers urgently as she had not filed her material. On 10 November 2021, a text message was sent to Ms Nichols’ mobile number to advise of the details of the Non-Compliance Hearing and asking her to contact Chambers as soon as possible.

[10] The Non-Compliance Hearing took place before me on 12 November 2021 at 12.00pm. Ms Nichols could not be contacted, despite three attempts to call her on the mobile telephone number listed in her Form F2 and the leaving of three voice messages. At the Hearing, the Respondent made an oral application pursuant to s.399A of the Act for the matter to be dismissed due to Ms Nichols’ failure to comply with the Directions of the Commission requiring her to file material and her non-attendance at proceedings before me. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[11] Following the Non-Compliance Hearing correspondence was sent to Ms Nichols via email (which was returned as undeliverable) and via Express Post advising her of the Respondent’s s.399A application.

[12] In the correspondence, Ms Nichols was directed to file submissions explaining why she had failed to attend the Non-Compliance Hearing on 12 November 2021 and why she had not complied with the Directions made on 8 October 2021. Further, it was outlined that her response was required by no later than 12.00pm on Thursday 25 November 2021 and if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission. Finally, Ms Nichols was cautioned that in the absence of a response, her unfair dismissal application would likely be dismissed without further notice.

[13] To date, Ms Nichols has not filed any material with the Commission in response.

[14] 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.

....

(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.

[15] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As Ms Nichols did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing her application, attending the staff conciliation and responding to a single email from my Chambers, Ms Nichols has otherwise failed to actively prosecute her case and has provided no explanation to the Commission for either her continued failure to comply with the Directions requiring her to file material or her failure to attend the Non-Compliance Hearing on 12 November 2021.Ms Nichols has demonstrated indifference in the face of repeated efforts by various members of the Commission’s staff to make contact with her. She has had numerous opportunities to engage with the Commission’s processes and prosecute her case but has not taken these.

[17] In the circumstances of this matter, I am satisfied that Ms Nichols has acted unreasonably and that I should exercise my discretion under s.399A and dismiss her unfair dismissal application. This ends Ms Nichols’ unfair dismissal application.

[18] An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

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