Peta Rovelli v BHP

[2019] FWC 495

[2019] FWC 495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peta Rovelli
v
BHP
(U2018/11921)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 20 November 2018, Miss Peta Rovelli made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Rovelli said her employment had been terminated by BHP on 7 November 2018 and that it took effect on 8 November 2018.

[2] A Notice of Listing was sent to the parties on 21 November 2018 scheduling the matter for a conciliation at 10:45am on 11 December 2018. This was followed by a letter to Miss Rovelli containing information about the conciliation.

[3] On 6 December 2018, the Commission attempted to telephone Miss Rovelli to obtain her telephone number for the purpose of facilitating the conciliation. As Miss Rovelli could not be contacted, a voicemail message was left. Following this, the Commission sent correspondence to Miss Rovelli’s nominated email address advising that the matter was listed for conciliation on 11 December 2018 and that in the absence of advice to the contrary, she would be contacted on the phone number provided on her application.

[4] The conciliation scheduled at 10:45am on 11 December 2018 could not proceed due to Miss Rovelli’s unavailability. The Commission emailed correspondence to the parties stating that unless either of the parties advised they wished for the matter to proceed to a further conciliation within two working days, the matter would be referred for arbitration.

[5] On 14 December 2018, the Commission telephoned Miss Rovelli who requested additional time to consider her options in either withdrawing her application or proceeding to arbitration. Miss Rovelli was asked to notify the Commission of her decision by midday on 17 December 2018.

[6] As no response was received from Miss Rovelli, a Notice of Listing was sent to the parties on 19 December 2018 scheduling the matter for an Arbitration Conference/Hearing. Directions were also issued requiring Miss Rovelli to file an Outline of Argument, Statement(s) of Evidence and Document List by no later than noon on 7 January 2019.

[7] On the afternoon of 7 January 2019, the Commission attempted to telephone Miss Rovelli in relation to her overdue material. A voicemail message was left requesting her return call, and an email was also sent to Miss Rovelli seeking her advice as to when she intended to file her material.

[8] The Commission attempted to telephone Miss Rovelli again on 8 January 2019 and a voicemail message was left warning that the matter would be listed for a non-compliance hearing if she did not respond by noon the next day. A further email was sent to Miss Rovelli repeating the same advice.

[9] As no response was received from Miss Rovelli, a Notice of Listing scheduling the non-compliance hearing was sent to the parties on 9 January 2019. Following this, another attempt to telephone Miss Rovelli was made and a voicemail message was left advising her that the non-compliance hearing had been scheduled for 11 January 2019 at 8:30am Brisbane time.

[10] On 10 January 2019, an amended Notice of Listing was sent to the parties changing the time of the non-compliance hearing from 8:30am to 9:30am Brisbane time. A telephone call was attempted to Miss Rovelli and a voicemail message was left advising her of a subsequent change in time to 1:00pm Brisbane time.

[11] The non-compliance hearing proceeded before Commissioner Wilson on 11 January 2019. Miss Rovelli could not be contacted. BHP made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Miss Rovelli’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted BHP’s oral application.

[12] Following the non-compliance hearing, correspondence was sent to Miss Rovelli’s nominated email and postal addresses advising her of BHP’s s.399A application. The postal correspondence was sent via express post. Miss Rovelli was directed to file submissions and other documentary material in respect of the s.399A application by 4:00pm on 18 January 2019. The correspondence also noted that if the Commission did not receive a response, Miss Rovelli’s application for relief from unfair dismissal would likely be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Miss Rovelli’s nominated postal address on 15 January 2019.

[13] Also following the non-compliance hearing, a Notice of Listing was sent to the parties vacating the directions and cancelling the Arbitration Conference/Hearing.

[14] To date, Miss Rovelli has not filed any material with the Commission.

[15] 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.

[16] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[17] As Miss Rovelli did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Rovelli has failed to respond to the numerous attempts made by the Commission to contact her. Apart from initially filing her application, Miss Rovelli has shown no willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with the Commission’s directions or her failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Miss Rovelli’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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