Ruby Carr v Coca-Cola Europacific Partners Australia Pty Limited

[2022] FWC 2926

[2022] FWC 2926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ruby Carr
v

Coca-Cola Europacific Partners Australia Pty Limited

(U2022/8526)

DEPUTY PRESIDENT DOBSON BRISBANE, 3 NOVEMBER 2022

Application under s.399A – applicant’s failure to comply with directions – no explanation for failure – application dismissed.

1. This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by Coca-Cola Europacific Partners Australia Pty Limited (Respondent) to dismiss an unfair dismissal application brought against it by Ms Ruby Carr (Applicant).

1. On 19 August 2022, the Applicant filed pursuant to s.394 of the Act for remedy from unfair dismissal. The matter was listed for conciliation before a staff conciliator on 5 October 2022 however was unable to be resolved. The matter was referred to me on 13 October 2022.

1. On this same day, I issued directions requiring both parties to file material in the Commission and serve on the other party. The parties were also informed, by way of email and a formal notice of listing, that the matter would be listed for a preliminary conference before me at 2:00pm 28 October 2022 by telephone.

1. The Directions required, among other things, that the Applicant file her material by no later than 4:00pm on Thursday 27 October 2022. The Directions also informed that the material must be provided by the date specified. The Applicant did not comply with the Directions.

1. At 9:40 AM AEST on Friday 28 October 2022, my Chambers sent correspondence to both parties indicating that it appeared that the Applicant had not complied with the Directions. I directed the Applicant to provide an explanation for this during the conference at 2:00pm that same day. The correspondence from my Chambers was as follows:

“Dear parties,

Reference is made to the subject matter and the directions issued on 13 October 2022 and the notice of listing issued.

Parties were required to confirm their attendance and contact numbers for the conference this afternoon listed at 2:00pm.

Parties are directed to provide these details as soon as possible to chambers.

Ms Carr, in accordance with paragraph 4, you were directed to file and serve your submissions in relation to the merits of your application by no later than 4:00pm Thursday 27 October 2022.

At the time of writing, no materials have been filed as directed and there has been no request for an extension to file submissions or any other communication from you. Accordingly, the Deputy President directs you to provide an explanation for your apparent non-compliance with the directions during the conference this afternoon at 2:00pm.

In the absence of any material filed by you, the matter may be determined without further reference to you. Alternatively, should the Respondent file according to s.399A of the Act, the Deputy President will be required to consider whether the matter be dismissed.

…”

1. At the scheduled time of the conference, my associate made several attempts to contact the Applicant on her nominated contact number provided on her Form F2 and confirmed by way of email to the Commission from the Applicant’s email address on 12 September 2022. A voice message was left, informing she was required to attend. My associate also sent a message by way of SMS as follows:

“The Commission has attempted to contact you for the Conference by Telephone before Deputy President Dobson.

You are reminded of the obligation under s.592 of the Act under which a person is directed to attend a conference at a specified time and place.

The Deputy President directs you to attend.”

1. The Applicant failed to attend the conference or contact Chambers to explain her absence. At 5:00pm on 28 October 2022, my Chambers sent further correspondence as follows:

“…

On 13 October 2022, this Chambers issued a Notice of Listing directing your attendance at a conference before Deputy President Dobson.

The conference was scheduled for 2:00pm today, 28 October 2022. This Chambers made several attempts to contact you and left a voice message and sent an SMS.

You have now failed to comply with the direction issued on 13 October 2022 in failing to file your material and also in failing to attend the Conference without any prior request for extension or adjournment.

Ms Carr, the Deputy President directs you to explain your apparent failure to comply with the Directions and provide evidence in support as soon as possible but by no later than 4:00pm Wednesday 2 November 2022.

If you do not intend to press your application, you should withdraw by filing in the Commission, and serving on the Respondent a completed and signed copy of the attached form F50.

Should the Respondent file according to section s.399a of the Fair Work Act 2009 the application may be dismissed and a decision published on the Commission’s public website.

…”

1. On 31 October 2022, the Respondent made an application pursuant to s.399A of the Act by way of signed letter. Later that same day, I directed the Applicant, by way of email, to provide reasons as to why the matter should not be dismissed by 4:00pm on Wednesday 2 November 2022, in response to the application made by the Respondent. The correspondence to the parties highlighted that in the absence of anything filed by the Applicant, that the hearing would be vacated and the matter would be decided on the papers, however if the Applicant were to follow my directions then the hearing listed for 7 December 2022 would proceed as a non-compliance hearing.

1. The Applicant again failed to comply with my directions of 31 October 2022 and did not provide any response to the application made by the Respondent. Nor did the Applicant provide an explanation for failing to follow my directions of 13 October, 28 October, nor for her absence at the conference on 28 October.

1. To date, Chambers has not received any form of communication from the Applicant.

1. Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s.399A(1)(b)). I am satisfied that the Applicant unreasonably failed to comply with the requirement to attend the previously listed conferences and to file her materials in accordance with the directions. I consider that the failure was unreasonable for the following reasons:

(A)The Applicant has repeatedly failed to offer any reasonable explanation for her failure to comply with the directions or attend the listed conferences.

(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress her non-compliance but has failed to do so.

1. My discretion to dismiss the Applicants’ unfair dismissal application under s.399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for her failure to comply with my multiple directions and the fact that she has persisted in failing to file her materials or to respond to directions seeking explanations for such failures. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application. The Respondent is entitled to understand the case that is put against it in good time so that it may properly respond. This is a matter of basic fairness.

1. For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.399A.

1. Pursuant to s.399A, the Applicant’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR747586>