Rita Sutton v dnata Airport Services Pty Ltd
[2022] FWC 1037
•5 MAY 2022
| [2022] FWC 1037 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rita Sutton
v
dnata Airport Services Pty Ltd
(U2021/11120)
| DEPUTY PRESIDENT CROSS | SYDNEY, 5 MAY 2022 |
Application for an unfair dismissal remedy – s.399A Application
On 2 December 2021, Ms Rita Sutton (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), alleging that she had been unfairly dismissed from her employment by dnata Airport Services Pty Ltd (the Employer).
This decision concerns an application made by the Employer to have the application dismissed pursuant to s.399A of the Act.
Background
The matter was listed for a conciliation conference (Conciliation) conducted by a Fair Work Commission (Commission) staff conciliator (the Staff Conciliator) on 27 January 2022; however, the Conciliation could not proceed. Shortly after the Staff Conciliator established contact with both parties, the Applicant’s line disengaged, and the Staff Conciliator was unable to re-establish contact with the Applicant despite several voicemails being left for the Applicant over the subsequent 30-minute period. As the matter was not able to be resolved by Conciliation, it was allocated to my Chambers.
On 30 March 2022, my Chambers issued a Notice of Listing to the parties. The Notice of Listing of 30 March 2022 scheduled the matter for a Member Assisted Conciliation and Directions Hearing (the Directions Hearing) before me on 6 April 2022. The Applicant did not join the Directions Hearing of her own volition. My Associate contacted the Applicant via telephone shortly after the listed commencement time and was advised by the Applicant that she had forgotten about the listing and was on her way home from work. My Associate then dialled the Applicant into the Directions Hearing, during which the proposed dates for filing of materials and for the hearing of this matter were discussed. During the course of the Directions Hearing, the Applicant agreed to the proposed dates for filing, however could not anticipate the length of the hearing nor how many witnesses she would be calling. The Applicant then disengaged from the call twice. My Associate made a third attempt to dial the Applicant into the Directions Hearing, however the call went directly to voicemail.
Having been unable to maintain contact with the Applicant via phone, there was no opportunity for a Member Assisted Conciliation to take place. The Directions Hearing was concluded noting that the proposed directions would issue, and the matter would be set down for hearing on 25 May 2022. The Directions were enclosed in the Notice of Listing dispatched to the parties that same day. The Applicant was directed to file an outline of submissions, witness statements and other documentary material she sought to rely on in support of her Application in this matter by 4:00PM on 20 April 2022.
No materials were filed by the Applicant in accordance with the Directions. Correspondence was sent from my Chambers on 21 April 2022, requesting the Applicant file her materials by 4:00PM on 22 April 2022, or otherwise notify Chambers of any requests for an extension of time, discontinuance, or issues affecting the filing of materials. No response was received.
On 26 April 2022, my Chambers attempted to contact the Applicant via telephone. A voicemail message was left for the Applicant, noting that her materials were due on 20 April 2022, and referring to the correspondence sent on 22 April 2022. The Applicant was requested to contact Chambers as soon as possible. That same day, shortly after the voicemail message was left, the Applicant called my Chambers. The Applicant enquired who she was speaking with. My Associate confirmed her position in my Chambers at the Fair Work Commission, at which point the Applicant promptly ended the call. Following this exchange, my Associate sent correspondence to the parties regarding the Applicant’s non-compliance with the Directions, and noting that should the Applicant fail to respond, her matter may be determined in the absence of her materials, and that this may result in her matter being dismissed. The Applicant was requested to respond by 4:00PM on 27 April 2022. No response was received.
The s 399A Application
On 28 April 2022, the Respondent filed an application to dismiss this matter under s 399A(1)(b) of the Act (the s 399A Application). The s 399A Application was filed via email, and was also addressed to the Applicant. The s 399A Application stated:
“We wish to make an application under section 399A(1)(b) of the Fair Work Act 2009 (Cth) for the Commission to exercise its discretion to dismiss the applications made by Ms R Sutton. This application is made on the basis that Ms Sutton has unreasonably failed to comply with a direction of the Commission relating to their respective unfair dismissal applications.
The Respondent submits that the conduct of Ms R Sutton has been unreasonable in the circumstances for the following reasons:
1) Failure to attend Member led conciliation on 6th April 2022
2) Failure to adhere to directions given by chambers on 6th April 2022 through not filing required documents on 20th April 2022
3) Chambers notified the applicant of noncompliance 21st April 2022 with an extension until 22nd April 2022
4) The applicant failed to comply with the directions given for the 22nd April 2022
5) Chambers contacted the applicant 26th April confirming noncompliance and reminding the applicant that noncompliance with directions will not be tolerated. With the requirement for the applicant to respond by 27th April 2022, 1600.
6) The applicant has failed to meet this further extension”
Following receipt of the s 399A Application, correspondence was sent from my Chambers directing the Applicant to respond to the s 399A Application, including providing reasons for her non-compliance with directions of the Commission and reasons as to why her application should not be dismissed, by 4:00PM on 3 May 2022. No response has been received.
Consideration
Section 399A of the Act sets out the circumstances in which the Commission may dismiss an application for an unfair dismissal remedy on application by the employer 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.”
Despite attending the beginnings of the Conciliation and the Directions Hearing, the Applicant has not engaged with the Commission in any substantial capacity. The Applicant disengaged from both the Conciliation and the Directions Hearing without warning and did not contact my Chambers to offer an explanation or to attempt to re-join the proceedings. The Applicant has not filed any materials in accordance with the Directions issued from my Chambers, nor has she filed any other materials. The Applicant has not contacted my Chambers, other than the brief telephone call on 26 April 2022, which she ended without explanation. The Applicant has not responded to any of the correspondence sent to her by my Chambers, which each required her response by a stated date and time.
In the circumstances, I am satisfied that the Applicant has unreasonably failed to comply with Directions of the Commission relating to her Application. The Applicant was on notice that her failure to comply with the Directions of the Commission may result in her application being dismissed.
Conclusion
At the request of the Employer, the Application for an unfair dismissal remedy is dismissed in accordance with s.399A of the Act. An Order to this effect [PR741278] has been issued concurrently with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR741254>
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