Rachel Louise Robinson v Eastcoast Beverages T/A Eastcoast Beverages

[2020] FWC 319

[2020] FWC 319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachel Louise Robinson
v
Eastcoast Beverages T/A Eastcoast Beverages
(U2019/12818)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 21 JANUARY 2020

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by Ashmara Pty Ltd T/A Eastcoast Food & Beverages (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Ms Rachel Robinson, pursuant to s 394 of the Act (Application).

Background

[2] Ms Robinson lodged her Application dated 14 November 2019 in the Fair Work Commission (Commission). In that Application, Ms Robinson contends that she was unfairly dismissed on 31 October 2019.

[3] Ms Robinson failed to participate in a conciliation conference on 8 January 2020. The matter was then assigned to my chambers.

[4] The matter was listed for a directions hearing, by telephone, on 17 January 2020. There was no appearance by or on behalf of Ms Robinson at that directions hearing.

[5] An email in the following terms was sent to Ms Robinson after the directions hearing on 17 January 2020:

“Dear Ms Robinson

This matter was listed for directions by telephone before Deputy President Saunders at 9am this morning pursuant to a Notice of Listing sent to the parties on 13 January 2020 at 2:39pm.

There was no appearance by or on behalf of you, the applicant, at the directions hearing. The respondent participated in the directions hearing.

This matter is now listed for a further directions hearing (by telephone) on Tuesday, 21 January 2020 at 10am. It is necessary for both parties to participate in this directions hearing. If you do not participate in the directions hearing (by telephone) on Tuesday, 21 January 2020 at 10am, your unfair dismissal application may be dismissed without further prior notice to you.

A notice of listing has been sent out and is also attached to this email.”

[6] There was no appearance by or on behalf of Ms Robinson at the directions hearing on 21 January 2020. My Associate attempted, without success, to contact Ms Robinson at the commencement of the directions hearing on 21 January 2020.

Application for dismissal

[7] During the directions hearing on 21 January 2020, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Ms Robinson had failed to attend the conciliation on 8 January 2020, the directions hearing on 17 January 2020, and the directions hearing on 21 January 2020.

[8] Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

[9] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

[10] In light of the history of the proceedings outlined above, I am satisfied that:

•  Ms Robinson has unreasonably failed to attend a conference conducted by the Commission (on 8 January 2020) in relation to the Application;

•  Ms Robinson has unreasonably failed to attend two hearings held by the Commission (on 17 and 21 January 2020) in relation to her Application; and

•  there has been an application by the employer in accordance with s 399A(2).

[11] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Ms Robinson’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Ms Kusama, Workplace Relations Director, NSW Farmers’ Industrial Association, appeared for Ashmara Pty Ltd

Hearing details:

2020.

Newcastle:

21 January.

Printed by authority of the Commonwealth Government Printer

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 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]