Nicola Unantenne v Calvary Aged Care Services Pty Ltd

[2024] FWC 3305

[2024] FWC 3305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicola Unantenne
v

Calvary Aged Care Services Pty Ltd

(U2024/10700)

COMMISSIONER FOX MELBOURNE, 4 DECEMBER 2024

Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.

1. On 11 September 2024, Ms Nicola Unantenne filed a Form F2 – Unfair dismissal application (Form F2) for a remedy for unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Calvary Aged Care Services Pty Ltd (the Respondent).

1. The matter was listed for staff conciliation on 28 October 2024. Ms Unantenne did not attend the staff conciliation and the Commission’s records indicate that the Respondent requested that the matter be referred to a Member of the Commission.

1. The matter was subsequently referred to me for determination.

1. The matter was listed for a Mention/ Conference at 2:00PM on 11 November 2024. A Notice of Listing was sent to parties on 6 November 2024. Prior to the Mention/ Conference, my Chambers sent an email to parties on 8 November 2024 requesting that the parties confirm their attendance for the listing.

1. Directions were issued to the parties prior to the Mention on 11 November 2024. These Directions outlined the timeline for the filing and service of material ahead of the Determinative Conference/ Hearing, which was listed for 19 December 2024. The correspondence attaching these Directions again noted that the matter was listed for a Mention that day.

1. At 10:57AM on 11 November 2024, my Chambers received correspondence from Ms Unantenne requesting an adjournment of the listing. No reasons or evidence was provided to support the adjournment request, and as such my Chambers replied to this correspondence advising Ms Unantenne that the Mention/ Conference listed for 2:00PM would proceed. Prior to the commencement of the Mention, my Chambers attempted to contact Ms Unantenne via her nominated mobile phone number twice and left voicemail messages alerting Ms Unantenne to the listing and advising that should Ms Unantenne not attend, the Mention would proceed in her absence.

1. Ms Unantenne did not attend the Mention, and the listing proceeded in her absence. At the Mention, I went through the Directions issued to parties and the consequences of non-compliance with Directions.

1. The Directions required Ms Unantenne to file an Outline of Argument, Statement of Evidence and Document List by 3:00PM on 25 November 2024. Ms Unantenne did not comply with Directions.

1. On 26 November 2024, the Respondent filed a Form F1 seeking dismissal of Ms Unantenne’s application pursuant to s.399A or s.587 of the Act.

1. In response to this Form F1, on 28 November 2024, parties were notified that the matter was listed for a Non-Compliance Hearing at 4:30PM on 29 November 2024. In this correspondence, Ms Unantenne was informed that if she did not attend the matter may be dismissed.

1. Prior to the Non-Compliance Hearing, my Chambers sent further correspondence requesting that Ms Unantenne confirm her attendance and advised her again that if she did not attend, the Hearing would proceed in her absence. My Chambers attempted to contact Ms Unantenne by telephone prior to the Hearing, but Ms Unantenne could not be reached, and voicemail messages were left advising Ms Unantenne of the listing, and further advising that if she did not attend, then the Mention would proceed in her absence.

1. Ms Graves and Ms Moore attended the Non-Compliance Hearing for the Respondent. Ms Unantenne did not attend the Hearing. At the Non-Compliance Hearing, I accepted the s.399A application filed by the Respondent on 26 November 2024.

1. Following the Non-Compliance Hearing, noting that Ms Unantenne did not attend, I determined it appropriate to give Ms Unantenne time to respond to the s.399A application made by the Respondent. Correspondence was sent by my Chambers to Ms Unantenne’s nominated email address advising her of the Respondent’s s.399A application. This correspondence directed Ms Unantenne to respond to the s.399A application, and to provide reasons as to why she had not complied with the Direction to file and serve an Outline of Argument, Statement of Evidence and Document List by 3:00PM on 25 November 2024, or attend the Mention on 11 November 2024, or attend the Non-Compliance Hearing held on 29 November 2024. Ms Unantenne had until 5:00PM on 2 December 2024 to provide a response to this correspondence.

1. No reply was received from Ms Unantenne.

Consideration

1. Section 399A of the Act outlines 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.

1. Section 593 of the Act provides that the Commission is not required to hold a Hearing except as provided by the Act. As Ms Unantenne has not provided any submissions in response to the Respondent’s s.399A application, I do not consider that there are contested facts which require a Hearing. I therefore determine that it is appropriate to determine the matter on the papers.

1. The power to dismiss under s.399A where the non-compliance is unreasonable is discretionary.[1] The Commission has used the nominated telephone number and email address provided by Ms Unantenne in her Form F2 and I consider that Ms Unantenne has had multiple opportunities to engage in the Commission’s processes and prosecute her case. Despite these opportunities, Ms Unantenne has failed to provide material in compliance with my Directions of 11 November 2024, nor has she requested an extension to file material.

1. In all the circumstances, I consider it appropriate to exercise my discretion under s.399A(1)(a) and s.399A(1)(b) of the Act to dismiss Ms Unantenne’s remedy for unfair dismissal application. I am satisfied that Ms Unantenne has unreasonably failed to attend the Non-Compliance Hearing on 29 November 2024, despite attempts by my Chambers to contact her before the Hearing both via her nominated email address and by mobile phone. I also consider that Ms Unantenne has unreasonably failed to attend the Mention on 11 November 2024, and further has unreasonably failed to comply with my Directions of 11 November 2024 and 29 November 2024.

1. As I have determined it appropriate to exercise my discretion under s.399A of the Act, Ms Unantenne’s remedy for unfair dismissal application is dismissed. An Order to this effect will be issued with this Decision.[2]

COMMISSIONER

Determined on the papers.

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

[2] PR782030.

Printed by authority of the Commonwealth Government Printer

<PR781791>