Roisin O'Doherty v The Trustee for R L Dawkins Family Trust

[2019] FWC 8086

[2019] FWC 8086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roisin O’Doherty
v
The Trustee for R L Dawkins Family Trust
(U2019/8266)

COMMISSIONER BISSETT MELBOURNE, 29 NOVEMBER 2019

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

[1] On 25 July 2019, Ms Roisin O’Doherty (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that her employment had been terminated by Tillbrook Nominees Pty Ltd T/A C Y O'Connor Village Pub (Respondent) on 4 July 2019.

[2] The matter was listed for conciliation on 5 September 2019 however the conciliation could not proceed as the Commission was unable to contact the Applicant on her nominated mobile telephone number on that date. The Applicant’s representative advised they had received an email from the Applicant stating that their mobile telephone was out of order and could not proceed with the conciliation on that day.

[3] On 9 September 2019, the Applicant’s representative emailed the Commission a request for a second conciliation listing. The Applicant’s representative advised the Applicant damaged her mobile telephone shortly before the conciliation on 5 September 2019 which prevented her from attending. No alternative telephone number was provided for the Applicant.

[4] Following the Applicant’s representative’s request, the matter was relisted for conciliation on 9 October 2019. However the conciliation could not proceed as the Commission was again unable to contact the Applicant on her nominated mobile telephone number on that date.

[5] On 15 October 2019, directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 17 – 19 December 2019. The Applicant was directed to file her material by no later than noon on 4 November 2019. No such material was received.

[6] At 4:30pm on 4 November 2019, the Commission attempted to telephone the Applicant’s representative in relation to the Applicant’s overdue material. A voicemail message was left. The Applicant’s representative did not return this call.

[7] At 4:37pm on 4 November 2019, the Commission emailed correspondence to the Applicant’s representative and copied in the Applicant’s nominated email address. The correspondence stated that if the Commission did not receive a response, the Applicant’s matter was at risk of being listed for a Non-Compliance Hearing on 8 November 2019. The Applicant and their representative failed to respond to the Commission’s correspondence.

[8] On 6 November 2019, the Commission attempted to telephone the Applicant’s representative on two occasions. Two voicemail messages were left. The Applicant’s representative did not return these calls.

[9] Later that day the Commission attempted to telephone the Applicant on their nominated mobile telephone number. The Applicant answered the call and then disconnected. A return call was made by the Commission to the Applicant’s mobile telephone number. This second call was not answered and a voicemail message was left advising that the Applicant’s submissions were overdue and the matter was at risk of being listed for a Non-Compliance Hearing. The Applicant did not return this call.

[10] At 12:33pm on 6 November 2019, the Commission emailed correspondence to the Applicant and their representative. The correspondence stated that if the Commission did not hear back by 6 November 2019, the matter would be listed for a Non-Compliance Hearing on 8 November 2019.

[11] At 4:19pm on 6 November 2019, as no response from the Applicant or their representative had been received, a Notice of Listing was issued to the parties scheduling a Non-Compliance Hearing for 8 November 2019.

[12] On 7 November 2019, an SMS message was sent by the Commission to the Applicant’s nominated mobile telephone number. The message stated that the Applicant would be called on their nominated mobile telephone number for the Non-Compliance Hearing scheduled for 8 November 2019 at 9:00am.

[13] Later that day the Applicant’s representative emailed correspondence to the Commission advising their contact details for the Non-Compliance Hearing.

[14] The Non-Compliance Hearing proceeded before Deputy President Clancy on 8 November 2019. The Commission attempted to call the Applicant on her mobile phone number but she was unable to be contacted. The Applicant’s representative attended the Non-Compliance Hearing but advised that they have no instructions from the Applicant. The Respondent made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to comply with the directions of the Commission. Deputy President Clancy waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[15] On 11 November 2019, following the Non-Compliance Hearing, correspondence was sent to the Applicant’s representative and the Applicant’s nominated email address advising her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss her application by no later than 4.00 pm on 18 November 2019. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[16] To date, the Applicant has not filed any material with the Commission.

[17] Section 399A of the FW 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.

[18] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact her and has provided no explanation to the Commission for her failure to comply with the directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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