Sarah Kiwarkis v Martin Brower

[2019] FWC 5186

[2019] FWC 5186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Sarah Kiwarkis
v
Martin Brower
(U2019/5352)

COMMISSIONER RIORDAN SYDNEY, 31 JULY 2019

Application for an unfair dismissal remedy.

[1] Ms Sarah Kiwarkis (the Applicant) lodged an unfair dismissal application on 14 May 2019 claiming that she was unfairly dismissed by Martin Brower Australia Pty Ltd (the Respondent) on 2 May 2019.

[2] The Applicant failed to participate in two telephone conciliations with a Fair Work Commission Conciliator on 25 June and 3 July 2019.

[3] The Applicant failed to participate in a telephone mention/directions conference before me on 8 July 2019.

[4] The Applicant was sent the following correspondence from my Chambers on the same day:

“Dear Ms Kiwarkis,

I refer to the Notice of Listing that was issued on 4 July 2019 to notify you that the above-mentioned matter was set down for conference and directions via telephone before Commissioner Riordan on 8 July 2019 at 12pm.

Unfortunately, you failed to participate in the teleconference. I attempted to make contact with you from 12 – 12.15pm on the listed mobile. I left three voice messages for you to please return my call.

The Respondent was advised that on the basis of your non-attendance, the matter would be adjourned.

Please be advised that you have seven days to provide a satisfactory explanation as to why you failed to participate in the teleconference. This is formal notification that if you fail to provide a satisfactory response in writing, the Fair Work Commission may dismiss your application pursuant to section 587 of the Fair Work Act, 2009 (the Act).

Please call (02) 9308 **** if you wish to discuss further.

Associate to Commissioner Riordan”

[5] At 2.31pm on 8 July 2019, the Respondent sent the following email to my Chamber:

“Dear Associate to Commissioner Riordan,

Martin Brower Australia Pty Ltd (the Respondent in the Fair Work Commission matter – U2019/5352 Kiwarkis v Martin Brower, makes application to the Fair Work Commission for this matter to be dismissed under s,399(a) of the Fair Work Act 2009, on the basis that:

1. The Applicant was unable to attend a telephone Conciliation on 25 June 2019;

2. The Applicant was unable to attend a telephone Conciliation on 3 July 2019; and

3. The Applicant was unable to participate in a telephone conference/direction on 8 July 2019.

The Respondent seeks this matter to be dismissed due to the cost associated in preparing and attending the repeated listings.

I have cc’d the Applicant into this email by way of service/information.

Regards

Rob Dalton

HR – Martin Brower”

[6] The Applicant responded at 2.33pm on 8 July 2019 in the following terms:

“Please dismiss the case as I am unable to be involved in conference calls as I am working casually and cannot have a day off without losing money.

It’s a shame it has come to this decision as I was wrongfully accused and no proof was given in the allegation that was made against me by Martin Brower.

If there is some way we can sort this out in a phone call that can be after 3pm I would gratefully appreciate it.”

[7] As a consequence of the Applicant’s request, the matter was set down for a telephone mention/directions conference on 23 July 2019 at 3pm. Yet again, the Applicant failed to join the teleconference.

[8] Section 399A of the Fair Work Act, 2009 (the Act), states:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[9] The Applicant has not made contact with the Commission since her correspondence of 8 July 2019.

[10] The Applicant’s failure to participate in any of the Commission’s proceedings as directed, is a breach of sections 399A(a) and (b) of the Act. As a result of these breaches and the application by the Respondent, I have decided to dismiss the Applicant’s application.

[11] The application is dismissed.

[12] I so Order.

COMMISSIONER

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