Natalie Dix v Kevcole Pty Ltd T/A Cubbyhouse Little Treasures, Esperance

[2020] FWC 695

[2020] FWC 695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natalie Dix
v
Kevcole Pty Ltd T/A Cubbyhouse Little Treasures, Esperance
(U2019/11434)

DEPUTY PRESIDENT BEAUMONT PERTH, 17 FEBRUARY 2020

Application for an unfair dismissal remedy - non-appearance for listed conferences - non-compliance with directions - dismissal of application initiated by the Commission under s 587 of the Fair Work Act 2009 (Cth) - application dismissed.

[1] Ms Natalie Dix (the Applicant) filed an application for an unfair dismissal remedy on 13 October 2019. 1 As is usually the case in these matters, directions were issued and conferences were scheduled as part of the programming of the matter. Regrettably, the Applicant did not comply with the directions and failed to attend the scheduled conference. Therefore, it is necessary to address whether the Applicant’s application should be dismissed in light of these circumstances.

[2] In these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal. 2 That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.3

[3] However, for the reasons that follow, I have decided to dismiss this application for want of prosecution. These are my reasons.

Background

[4] Following the Commission’s attempt to conciliate the matter, the application was allocated to my Chambers and a conference was listed by telephone for 2 December 2019. The purpose of the conference was to discuss the directions for programming, and to better understand the Applicant’s application given its lack of clarity on the face of the document.

[5] Part-way through the conference, the Applicant left the call, purportedly due to connection issues. Multiple attempts were made to re-establish the conference and an email was also sent to the Applicant seeking an alternative contact number, preferably a land line, to avoid further connection issues. No alternative number was received so the conference was abandoned.

[6] An email was sent to both parties regarding the connection issues, and the matter was relisted for 3 December 2019 (the following day). Chambers again requested an alternative contact number, so that the conference could continue if there were further issues with mobile phone coverage. The Applicant did not respond to this request or Chambers’ earlier email request for an alternative contact number.

[7] On 3 December 2019, 30 minutes before the scheduled start time for the listed conference, Chambers attempted to contact the Applicant, by telephone, to determine if an alternative number was available, given that no reply had been received regarding the two earlier requests. A voice mail message was left to this effect.

[8] Chambers attempted to initiate the phone conference at 08:55 AWST on 3 December 2019, with Chambers making 5 phone calls in a 10 minute period to the Applicant. The Applicant could not be contacted, so an email was sent at 09:05 AWST regarding the Applicant’s absence. The email also provided a phone number for the Applicant to call in order to initiate the conference by 09:15 AWST. No contact of any sort was received, so the conference was abandoned due to the Applicant’s non-appearance.

[9] Chambers issued an email on that same day, 3 December 2020, at 09:35 AWST regarding this non-appearance, noting that multiple requests for an alternative contact number were made and not complied with. The email also raised ss 399A and 587, stating that ‘non-appearance for a listed conference or hearing can adversely impact an application for unfair dismissal remedy’. The matter was then relisted for 5 December 2019.

[10] An email was received from the Applicant on the afternoon of 3 December 2019, stating that the Applicant would not have phone coverage for another three weeks, and that she would email when phone contact had been re-established. My Chambers responded to this email stating that the matter was listed for 5 December 2019, and that an adjournment request was required, outlining reasons and evidence to support that adjournment. Chambers directed that any such request and materials in support were to be provided to Chambers by 12:00 AWST, 4 December 2019.

[11] Later, on the 3 December 2019, Chambers raised whether the Applicant still intended to pursue the application, and that the listing for 5 December 2019 would be vacated with the matter being relisted for 24 December 2019. In that same email, the parties were directed that a phone number would need to be provided to Chambers before the conference.

[12] On the following day, 4 December 2019, the Respondent wrote to Chambers stating that they would be away from 23 December 2019 until 19 January 2020, and requested that the listing be vacated in favour of a date in late-January. In response to this request, the matter was relisted for 3 February 2020.

[13] My Associate sent a reminder to both parties on 31 January 2020, noting that the matter was listed for 3 February 2020 and that each party should provide their best contact number to Chambers in advance of that listing. Neither party provided a contact number.

[14] On 3 February 2020, Chambers again attempted to initiate a phone conference. No responses had been received from the Applicant regarding an alternative number, or to state that their phone connection had been restored. Five phone calls were made by Chambers to the phone number provided by the Applicant with her application. Multiple voice mails were left by Chambers. I would note that close to 9 weeks had passed since the first listing in this matter.

[15] The listed conference was called on as a mention/directions hearing so that the Applicant’s non-attendance could be recorded. I took the opportunity to outline the issues that have occurred in the matter to date, and the delay in bringing the matter on for programming. A non-attendance email was subsequently sent to the Applicant. This email directed the Applicant to contact Chambers by 5 February 2020. No contact was received by that date.

[16] On 6 February 2020, Chambers attempted to phone the Applicant, and again left a voice mail raising non-compliance and non-attendance. The Applicant was asked to contact Chambers as soon as possible. An email was then sent to both parties raising that Chambers had attempted to contact the Applicant. This email allowed the Applicant until 16:00 AWST, 7 February 2020 to re-establish contact with the Commission.

[17] Sections 399A and 587 of the Act were raised with the parties in this email. Also, it was noted that if the Applicant did not wish to continue with the application, then she could lodge a Form F50 with Chambers in order to bring the matter to a close.

[18] In summary, the last contact received from the Applicant was by way of email on 3 December 2019. That email stated that the Applicant would not be contactable by phone for 3 weeks. The Commission has not received any further correspondence or telephone contact in the 11 weeks between this email and the date of this decision, despite numerous attempts to establish contact with the Applicant.

Consideration

[19] The Commission’s powers to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. I set out both sections:

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.

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:

failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

failed to comply with a direction or order of the FWC relating to the application; or

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.

[20] Section 587 of the Act does not limit the grounds on which the Commission of its own motion may dismiss an application. The Full Bench in Peter Viavattene v Health Care Australia 4 :

There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is [a] respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381). (footnotes omitted)

[21] In exercising the powers to dismiss an application, s 578 is considered. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

the objects of this Act, and any objects of the part of this Act; and

equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

[22] Section 381 provides the objects of Part 3-2 – Unfair Dismissal, which include that the procedures and remedies under the relevant part, and the manner of deciding on and working out such remedies, are intended to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned. Further, in circumstances where an applicant abandons their case - ignores notices of listings and directions - the application can be dismissed without the need to apply s 387. 5

[23] There is a reluctance that arises when it comes to extinguishing an Applicant’s right to have their matter heard. However, whilst the Applicant appeared at the first conference and responded to one email thereafter, subsequently she has demonstrated an unwillingness to pursue her matter further. And, while the Applicant was unequivocally placed on notice as to the consequence for non-compliance with directions and non-appearance for a mention and conference, she has shown an apparent indifference to that outcome.

[24] In the exercise of my discretion, I dismiss application U2019/11434 for want of prosecution, under s 587 or s 399A of the Act. I order accordingly and note that an order dismissing the application is issued alongside this decision. 6

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR716560>

 1 s 394 of the Fair Work Act 2009 (Cth)

 2   John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

 3 Ibid at [31].

 4   [2013] FWCFB 2532 [39].

 5   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [15].

 6   PR716797.