Sarah Maynard v Hero's Home Doctor T/A Surf Coast Home Doctor

[2020] FWC 3488

[2020] FWC 3488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Maynard
v
Hero’s Home Doctor T/A Surf Coast Home Doctor
(U2020/5525)

DEPUTY PRESIDENT MASSON MELBOURNE, 3 JULY 2020

Application for an unfair dismissal remedy.

[1] On 23 April 2020, Ms Sarah Maynard (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Hero’s Home Doctor T/A Surf Coast Home Doctor (the Respondent) was unfair. The Respondent objects to the application being heard on the basis that the Applicant’s employment was terminated on the grounds of genuine redundancy.

[2] The matter was allocated to my Chambers on 17 June 2020 for determination. Following allocation of the matter, directions were issued to the parties by my chambers on 18 June 2020 setting down a timetable for the filing of material by both parties in relation to both the jurisdictional objection raised by the employer and on the merits of the application.

[3] In the directions issued by my chambers on 18 June 2020 the parties were also advised of the listing of the matter for a Mention/Conference on 25 June 2020, and that they were each required to provide telephone contact numbers for the purpose of participating in the Mention/Conference. The Applicant failed to provide her telephone contact details and a follow-up email was sent by my chambers to her on the morning of 25 June 2020 seeking her contact number for the Mention/Conference to be held at 10.00am that morning. No response was received.

[4] The Mention/Conference proceeded on 25 June 2020 to which the Respondent attended. My Associate attempted to make contact with the Applicant on a number of occasions prior to commencement of the Mention/Conference via the Applicant’s mobile phone contact listed in the Commission’s Case Management system (CMS). The Applicant did not answer or return the calls made by my Associate. During the Mention/Conference the Respondent made an oral application under s. 399A that the application should be dismissed by reason of the failure of the Applicant to attend a conference or hearing conducted by the Commission.

[5] Immediately following the conference, correspondence was sent by my chambers on 25 June 2020 to the Applicant advising her that an application had been made by the Respondent for her application to be dismissed pursuant to s399A of the Act. The Applicant was invited to provide submissions as to why her application should not be dismissed and was required to file those submissions on or by 4.00pm on Wednesday 1 July 2020. The Applicant was also advised in the correspondence that should she fail to respond on or by the above-referred date then her application may be dismissed without further advice. No submissions were filed by the Applicant in response to the correspondence from the Commission to her on 25 June 2020.

[6] Further correspondence was sent by my chambers to the Applicant on 2 July 2020 advising that no response had been received from her in relation to the s 399A application and that she should contact my chambers as a matter of urgency. Further attempts were also made by my Associate on 2 July 2020 to contact the Applicant on her mobile phone without success or a return call from the Applicant.

[7] 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.”

[8] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss her application for unfair dismissal remedy by 1 July 2020, I will determine the application on the papers.

[9] I am satisfied that the Applicant failed to attend a Conference listed for 25 June 2020 and has not provided any evidence or reasons for such non-attendance. Nor has she responded to multiple telephone calls and various email communication from my chambers.

[10] In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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