Rachael Morris v RAW Sunshine Coast

[2023] FWC 2069

[2023] FWC 2069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rachael Morris
v

RAW Sunshine Coast

(U2023/4863)

COMMISSIONER CRAWFORD SYDNEY, 18 AUGUST 2023

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.

1. On 2 June 2023, Rachael Morris (Ms Morris) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that she had been unfairly dismissed from her employment with RAW Sunshine Coast Pty Ltd (RAW Sunshine Coast).

1. Ms Morris did not attend a conciliation conference with a Commission staff member on 6 July 2023. Representatives of RAW Sunshine Coast attended the conference.

1. Ms Morris also did not attend a Mention/Direction listed before me on 14 August 2023. Representatives of RAW Sunshine Coast attended the Mention/Direction. All attempts to contact Ms Morris were unsuccessful.

1. On 14 August 2023, RAW Sunshine Coast filed an application under s.399A of the Fair Work Act 2009 (Cth) (FW Act) using the Commission’s Form F1.

1. On 14 August 2023, I directed Ms Morris to file any material in response to RAW Sunshine Coast’s application by 5pm on Wednesday, 16 August 2023. Ms Morris did not file any material or make any contact with Chambers.

1. Section 399A of the FW 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.

…

(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. The relevant principles to consider RAW Sunshine Coast's application under s.399A were helpfully summarised in Lockyear v Graeme Cox[2021] FWCFB 875 (Lockyear) at [57]:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. Section 399A(2) is obviously satisfied by RAW Sunshine Coast’s application. Similarly, s.399A(1)(a) is satisfied by Ms Morris’ failure to attend conferences on 6 July 2023 and 14 August 2023. The jurisdictional pre-requisites are met for Ms Morris’ application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

1. Numerous attempts have been made to contact Ms Morris but to no avail. Two conferences have been arranged in relation to Ms Morris’ application and she has failed to attend either with no explanation. 

1. In these circumstances, I see no utility in allowing Ms Morris’ claim to continue and I therefore grant RAW Sunshine Coast’s application under s.399A.

1. An order giving effect to this decision will be issued separately in PR765335.

1. The application filed by RAW Sunshine Coast contained reference to seeking costs, without further elaboration. I direct RAW Sunshine Coast to file a separate application and submissions if it wishes to pursue this matter.

COMMISSIONER

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