Ruth Foster v Springmount Services

[2018] FWC 6930

[2018] FWC 6930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ruth Foster
v
Springmount Services
(U2018/8973)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 3 September 2018, Ms Ruth Foster 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). Ms Foster said her employment had been terminated by Springmount Services on 14 August 2018.

[2] On 11 September 2018, a Notice of Listing was sent to the parties scheduling a telephone conciliation for 26 September 2018. The Commission attempted to telephone Ms Foster on 21 September 2018 to confirm her preferred contact number for the purposes of the conciliation, but was unable to reach her. A voicemail was therefore left, seeking her return call, and email correspondence was sent asking Ms Foster to provide her preferred telephone number.

[3] The conciliation on 26 September 2018 did not proceed because Ms Foster could not be contacted, despite five attempts to telephone her and three voicemails left seeking her return call. The Commission later emailed correspondence to parties stating that unless Ms Foster advised that she wished for the matter to proceed to a further conciliation within two working days, the matter would be referred to arbitration.

[4] As Ms Foster did not contact the Commission, the matter was referred to arbitration on 3 October 2018 and email correspondence was sent to the parties to confirm this.

[5] On 4 October 2018, a Notice of Listing was sent to the parties scheduling the matter for Arbitration Conference/Hearing on 5-7 December 2018. Directions were also issued requiring Ms Foster to file her material by no later than noon on 29 October 2018 and Springmount Services to file its reply material by no later than noon on 19 November 2018.

[6] On 30 and 31 October 2018, the Commission attempted to telephone Ms Foster on two occasions regarding her overdue material. Both attempts were unsuccessful and voicemails were left seeking her return call. An email was subsequently sent to Ms Foster, 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 on 1 November 2018.

[7] As no response was received from Ms Foster, a Notice of Listing scheduling the non-compliance hearing was sent to the parties on the afternoon of 31 October 2018.

[8] The non-compliance hearing proceeded before Commissioner Wilson on 1 November 2018. Despite two attempts to telephone her and a voicemail left on each occasion, Ms Foster could not be contacted. Springmount Services made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Foster’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted Springmount Services’ oral application.

[9] Following the non-compliance hearing, correspondence was sent to Ms Foster’s nominated email and postal addresses advising her of Springmount Services’ s.399A application. The postal correspondence was sent via express post. Ms Foster was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 8 November 2018. The correspondence also noted that if the Commission did not receive a response, Ms Foster’s application for relief from unfair dismissal would be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Ms Foster on 2 November 2018.

[10] To date, Ms Foster 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 Ms Foster 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. Ms Foster has failed to respond to numerous attempts made by the Commission to contact her. Apart from initially filing her application, Ms Foster 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 Ms Foster’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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