Renae Phillips v Trimatic Management Services Pty Ltd T/A TSA Group

[2018] FWC 7203

[2018] FWC 7203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Renae Phillips
v
Trimatic Management Services Pty Ltd T/A TSA Group
(U2018/8530)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 20 August 2018, Miss Renae Phillips 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 Phillips said her employment had been terminated by Trimatic Management Services Pty Ltd T/A TSA Group (TSA) on 13 August 2018.

[2] The matter was initially scheduled for conciliation on 17 September 2018 but at the request of TSA, the conciliation was rescheduled to 19 September 2018. Notices of Listing were sent to the parties to notify them of both the initial schedule and the subsequent reschedule.

[3] The conciliation on 19 September 2018 did not proceed because Miss Phillips could not be contacted. The Commission later emailed correspondence to Miss Phillips on 20 September 2018 asking her to notify the Commission of her intention to either continue or discontinue her application. A further two emails were sent to Miss Phillips on 28 September 2018 and 4 October 2018, both warning that if she did not respond, her matter would be referred to arbitration before a Member of the Commission.

[4] As Miss Phillips did not contact the Commission, a Notice of Listing was sent to the parties scheduling the matter for an Arbitration Conference/Hearing on 5-7 December 2018. Directions were also issued requiring Miss Phillips to file her material by no later than noon on 29 October 2018 and TSA to file its reply material by no later than 19 November 2018.

[5] On 2 November 2018, the Commission attempted to telephone Miss Phillips in relation to her overdue material. This was unsuccessful and an urgent return call was sought via voicemail.

[6] On 7 November 2018, email correspondence was sent to Miss Phillips warning that in the absence of her filing material or making a request for an extension to file material, the matter would be listed for a non-compliance hearing. Later the same day, a further attempt to telephone Miss Phillips was made, but this was again unsuccessful and a voicemail was left.

[7] As no response was received from Miss Phillips, a Notice of Listing was sent to the parties on 8 November 2018 to schedule the non-compliance hearing. A further attempt to telephone Miss Phillips was made but again, she was unable to be contacted and a voicemail was left seeking her return call.

[8] The non-compliance hearing proceeded before me on 9 November 2018. Despite two phone calls and two voicemails seeking her urgent return call, Miss Phillips could not be reached. TSA made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Miss Phillips’ failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted TSA’s oral application.

[9] Following the non-compliance hearing, correspondence was sent to Miss Phillips’ nominated email and postal addresses advising her of TSA’s s.399A application. The postal correspondence was sent via express post. Miss Phillips was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 16 November 2018. The correspondence also noted that if the Commission did not receive a response, Miss Phillips’ application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Miss Phillips’ nominated postal address on 13 November 2018.

[10] To date, Miss Phillips has not filed any material with the Commission.

[11] 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.

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

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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Phillips has failed to respond to the numerous attempts made by the Commission to contact her. Apart from initially filing her application, Miss Phillips 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 Phillips’ application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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