Rhiannon Drummond v Rathway Holdings T/A Ray White Real Estate

[2017] FWC 1628

[2017] FWC 1628

The attached document replaces the document previously issued with the above code on 24 March 2017.

Amending the print identification code on page 3 from PR591293 to PR591199.

Ben Nicholson

Associate to Deputy President Clancy

27 March 2017

[2017] FWC 1628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rhiannon Drummond
v
Rathway Holdings T/A Ray White Real Estate
(U2016/13954)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 22 November 2016, Ms Rhiannon Drummond made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Drummond said that her employment had been terminated by Rathway Holdings T/A Ray White Real Estate (Ray White) on 15 November 2016.

[2] The matter was initially listed for conciliation at 9:15am on 15 December 2016. A Notice of Listing containing details of this conciliation was sent to parties on 23 November 2016. On 24 November 2016, Ms Drummond sent an email to the Commission confirming her telephone number for the conciliation. On 7 December 2016, Ms Drummond sent a further email that stated she had been attempting to contact the Commission in relation to her application, and asserted that “due to the stress and anxiety this has caused me, I would like my father in law John Ginn to represent me”.

[3] On 14 December 2016, Short Message Service (SMS) reminders of the conciliation time were sent to the mobile telephone numbers provided by the parties.

[4] On 15 December 2016, the conciliation could not proceed due to the inability of the conciliator to contact Ms Drummond or Mr Ginn. The conciliator subsequently sent correspondence to parties, advising that if either party wished for the matter to proceed via another conciliation they were to contact the conciliator within 48 hours, or the matter would be referred for an Arbitration Conference/Hearing.

[5] On 16 December 2016, the representative for Ray White, Mr Page, sent correspondence to both the conciliator and Ms Drummond, indicating a preference for the matter to proceed via another conciliation. Ray White further advised that it was available to participate in another conciliation from any date on or after 24 January 2017.

[6] As a result, the matter was relisted for conciliation at 10:15am on 27 January 2017. This second conciliation also did not proceed, as the several attempts made by the conciliator to contact Ms Drummond went unanswered. An urgent voice message was left for Ms Drummond to return the conciliator’s call. The conciliator subsequently telephoned Mr Ginn, who stated he was unaware of Ms Drummond’s intentions regarding her application and suggested that her unavailability was due to work commitments. Following this advice, the conciliator sent further correspondence to the parties, advising that:

“If [either of] you (the parties) want this matter to proceed via another conciliation, then as a matter of urgency please email me your request and any unavailability (within 48 hours) and I will refer your request to our Unfair Dismissals Team in Melbourne for consideration. Any such request will be dealt with on its merits and will depend on whether the non availability of the Applicant at the conciliation can be satisfactorily explained and whether both parties request another conciliation.

If I do not hear from you within the next 48 hours I will refer this matter directly for arbitration before a Member of the Fair Work Commission (the Commission).” (conciliator’s emphasis)

[7] As no correspondence was received from Ray White requesting another conciliation, and in the absence of any explanation from Ms Drummond regarding her non availability, the matter was referred for arbitration on 31 January 2017.

[8] Due to a jurisdictional objection raised by Ray White in its F3 – Employer Response form filed on 30 November 2016, the matter was listed for a Jurisdiction Conference/Hearing on 10 March 2017 to determine if Ms Drummond had worked the Minimum Employment Period pursuant to s.383 of the Act.

[9] On 8 February 2017, the Commission sent correspondence to parties explaining the operation of the minimum employment period under the Act. This correspondence also contained directions for Ray White to file its material in support of its objection by 20 February 2017, with Ms Drummond to file her material in reply by 2 March 2017.

[10] On 9 February 2017, Ray White filed a Form F1 – Application, in which it applied to have Ms Drummond’s application dismissed pursuant to s.399A(1)(a) of the Act, due to her failure to attend a conference conducted by the Commission. A copy of the email attaching the F1 Application form was also sent to Ms Drummond.

[11] On 10 February 2017, the Commission sent Ms Drummond correspondence informing her that Ray White’s s.399A application had been received and that she was directed to file submissions and other documentary material in respect of the application by 12:00pm on 22 February 2017. Ms Drummond was advised that if she failed to comply with this direction, her application would be dismissed.

[12] Ms Drummond did not file any material with the Commission by the due date of 22 February 2017. Consequently, the Jurisdiction Conference/Hearing listed for 10 March 2017 was vacated on 23 February 2017.

[13] 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.

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

[15] As Ms Drummond did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[16] The power to dismiss an application if the non compliance was unreasonable is discretionary. Ms Drummond has not shown a willingness to prosecute her case and nor has she provided an explanation for her failures to either attend conciliation conferences conducted by the Commission or comply with the direction regarding the s.399A application. She has not responded to the numerous attempts made by the Commission to contact her since 7 December 2016. In these circumstances, I will exercise my discretion under s.399A of the Act and dismiss Ms Drummond’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR591199>