Sara Morgan v Ocean Parade Motel

[2021] FWC 6389

[2021] FWC 6389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sara Morgan
v
Ocean Parade Motel
(U2021/6709)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 19 NOVEMBER 2021

Application for an unfair dismissal remedy - s 399A application made by employer - unfair dismissal application dismissed.

[1] This decision concerns an application made by Ocean Parade Motel (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by Ms Sara Morgan, pursuant to s 394 of the Act.

Background

[2] Ms Morgan lodged her unfair dismissal application in the Fair Work Commission (Commission) on 29 July 2021. The matter was allocated to my chambers on 1 November 2021. In her application, Ms Morgan contends that she was unfairly dismissed on 14 July 2021.

[3] The matter was listed for a directions hearing, by telephone, on 3 November 2021. There was no appearance by or on behalf of Ms Morgan at that directions hearing. My Associate attempted, without success, to contact Ms Morgan at the commencement of the directions hearing.

[4] On 3 November 2021, an email containing directions in the following terms was sent to the parties:

“Dear Ms Morgan and Mr Pan

I refer to the directions hearing, by telephone, in this matter before Deputy President Saunders at 9am this morning.

There was no appearance by or on behalf of Ms Morgan at the directions hearing. Mr Stephen Pan appeared for the respondent.

Mr Pan, on behalf of Ocean Parade Motel, has informed Deputy President Saunders that he wishes to make an application under s 399A of the Fair Work Act to dismiss Ms Morgan’s unfair dismissal application on the basis that she failed to attend the directions hearing at 9am this morning. Attached is an application form which Mr Pan may complete to make such an application.

Deputy President Saunders makes the following directions:

1. By 4pm on 5 November 2021, Mr Pan (on behalf of Ocean Parade Motel) must file and serve its application under s 399A of the Fair Work Act to dismiss Ms Morgan’s unfair dismissal application on the basis that she failed to attend the directions hearing at 9am on 3 November 2021. In order to do this, Mr Pan will need to complete the attached application and email it to [email protected] and [email protected].

2. The application by Ocean Parade Motel under s 399A of the Fair Work Act to dismiss Ms Morgan’s unfair dismissal application is listed for hearing, by telephone, at 9am on Wednesday, 10 November 2021.

Ms Morgan, it is essential that you participate in the hearing, by telephone, at 9am on 10 November 2021. If there is no appearance by you, or on your behalf, at that time, your unfair dismissal application may be dismissed without further notice to you.

A Notice of Listing will be sent to you, however, a copy of the dial in details are also included below.

Parties are required to dial into the teleconference five minutes prior to the scheduled start time.

1. Dial the number [phone]
2. You will be asked for a Conference ID. Enter 779 167 985#
3. Please wait on hold until the Associate to Deputy President Saunders joins the conference.
4. On completion of the conference, simply hang up.”

[5] There was no response from Ms Morgan to the email sent to the parties on 3 November 2021.

Application for dismissal

[6] On 6 November 2021, the Respondent filed an application to dismiss Ms Morgan’s unfair dismissal application on the basis of her failure to attend the directions hearing on 3 November 2021.

[7] On 8 November 2021, correspondence was sent from my chambers to Ms Morgan in the following terms:

“Dear Ms Morgan

Please see the attached application filed by Mr Pan.

It is essential that you participate in the hearing, by telephone, at 9am on 10 November 2021 which will determine this application. If there is no appearance by you, or on your behalf, at that time, your unfair dismissal application may be dismissed without further notice to you.”

[8] Ms Morgan did not respond to the email sent to her on 8 November 2021.

[9] On 10 November 2021, correspondence was sent from my chambers to the parties to remind them that the matter was listed for hearing at 9am that morning. My Associate also attempted, without success, to contact Ms Morgan by telephone prior to the commencement of the hearing. At 8:59am on 10 November 2021, Ms Morgan sent an email in the following terms to my Associate:

“i dont have a ph [sic] and i am going in to surgery in half an hour i have sent proof and asked to have this case put on hold or stephen send me his solicitors info so it can be delt [sic] with”

[10] There was no appearance by or on behalf of Ms Morgan at the hearing, by telephone, at 9am on 10 November 2021. Mr Stephen Pan appeared for the respondent.

[11] In light of the email received from Ms Morgan at 8:59am on 10 November 2021, I decided not to proceed to hear the application to dismiss Ms Morgan’s unfair dismissal application on 10 November 2021. Instead, I issued directions by email for Ms Morgan to file and serve evidence, by 16 November 2021, in support of her contention that she was in surgery at the time of the hearing on 10 November 2021. I also directed that the hearing of the application to dismiss Ms Morgan’s unfair dismissal application be stood over until 18 November 2021 for hearing. Ms Morgan was informed, in writing, that it was important that she participate in the hearing and that if she did not do so, her application may be dismissed without further notice. Ms Morgan did not file any material in response to these directions. The Commission has no knowledge of the “proof” to which Ms Morgan referred in her email of 10 November 2021.

[12] On 17 November 2021, correspondence was sent from my chambers to the parties to remind them that the matter was listed for hearing at 10am the following day. There was no response from either party to this correspondence.

[13] On 18 November 2021, prior to the commencement of the hearing, a further reminder of the hearing was sent to the parties. Ms Morgan was again informed that it was important that she participate in the hearing and that if she did not do so, her application may be dismissed without further notice. There was no response from either party to this correspondence.

[14] A hearing, by telephone, was conducted at 10am on 18 November 2021. My Associate attempted, without success, to contact Ms Morgan twice at the commencement of the hearing. There was no appearance by or on behalf of Ms Morgan at the hearing on 18 November 2021, and the Commission has not had any communication from or on behalf of Ms Morgan since her brief email on the morning of 10 November 2021. The Respondent pressed its application for the dismissal of Ms Morgan’s unfair dismissal application pursuant to s 399A of the Act.

[15] Section 399A of the Act provides as follows:

“(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 powers under subsection (1) on application by the employer.”

[16] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances.¹

[17] In light of the history of the proceedings as outlined above, I am satisfied that:

•  Ms Morgan has unreasonably failed to attend the directions hearing on 3 November 2021. Ms Morgan has not provided any explanation as to why she was not able to attend that directions hearing; and

•  there has been an application by the employer in accordance with s 399A(2).

[18] In the circumstances, I consider that it is appropriate to exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Ms Morgan’s unfair dismissal application.

[19] In the alternative, I am satisfied that Ms Morgan has failed to take any steps to prosecute or pursue her unfair dismissal claim since the file was allocated to my chambers on 1 November 2021. Even if Ms Morgan no longer has a phone and was going in to surgery on 10 November 2021, as suggested in her email of 10 November 2021, she has repeatedly failed to engage with the Commission in relation to this matter. Ms Morgan obviously has access to email and has been provided with multiple opportunities to explain her position. She has not taken up any of those opportunities and has taken no steps to pursue her unfair dismissal claim. In those circumstances, I consider that it is appropriate to exercise my discretion to dismiss Ms Morgan’s unfair dismissal claim under s 587 of the Act. Ms Morgan was put on notice that her unfair dismissal application may be dismissed without further notice to her if she did not attend the hearing on 18 November 2021. Accordingly, Ms Morgan has been afforded natural justice in relation to this alternative basis on which I have concluded that her unfair dismissal claim should be dismissed.

Conclusion

[20] For the reasons given, Ms Morgan’s unfair dismissal application against the Respondent is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Pan appeared for the respondent

Hearing details:

2021.

Newcastle:

18 November.

Printed by authority of the Commonwealth Government Printer

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1 Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]