Sarah Taylor v Fresh Trading Co

[2020] FWC 171

[2020] FWC 171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Taylor
v
Fresh Trading Co
(U2019/11597)

COMMISSIONER BISSETT MELBOURNE, 16 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 15 October 2019 Ms Sarah Taylor (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that her employment had been terminated by Fresh Trading Co (Respondent) on 24 September 2019.

[2] The matter was listed for conciliation conference on 14 November 2019. The matter was not settled at this conciliation conference.

[3] On 19 November 2019 a notice was issued to the parties advising that the matter was listed for Mention by telephone before Commissioner Bissett on 22 November 2019. The purpose of the Mention was to establish the programming of the matter for Conference/Hearing. The Mention proceeded on that date.

[4] On 25 November 2019 Directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 10 – 12 February 2020. The Applicant was directed to file her material by no later than noon on 16 December 2019. No such material was received.

[5] On 16 December 2019 the Applicant’s representative emailed correspondence to the Commission advising that they have been unable to obtain instructions from the Applicant. The Applicant’s representative requested an extension of time to file material until 13 January 2020. The Respondent’s representative was carbon copied into this correspondence.

[6] Later that day the Respondent’s representative emailed correspondence to the Commission advising that should the Commission determine not to dismiss the matter in accordance with s.399A of the FW Act, they request that the Commission issue new directions and adjourn the Conference/Hearing to allow the Respondent time to submit material in response and prepare for the Conference/Hearing.

[7] On 17 December 2019 the Commission emailed correspondence to the parties advising that Commissioner Bissett had received the correspondence from both parties. That correspondence advised that Commissioner Bissett had granted the Applicant an extension to file material to noon on 20 December 2019, the Respondent was granted an equal extension, and the Conference/Hearing remained listed for 10 – 12 February 2020. That correspondence also advised that if the Applicant failed to file their material as directed, the Respondent’s application under s.399A would be considered and directions for submissions in relation to the s.399A application would be issued.

[8] Later that day the Commission issued a notice to the parties advising of the amended directions.

[9] On 18 December 2019 the Applicant’s representative emailed correspondence to the Commission and the Respondent’s representative advising that as the Applicant’s representative had been unable to obtain instructions from the Applicant, they were ceasing to act as the Applicant’s representative. The email attached a Form F54 Notice of representative ceasing to act.

[10] On 24 December 2019 the Commission attempted to contact the Applicant on her nominated mobile telephone number. A voicemail message was left that was converted to a text message advising that the Applicant’s material is overdue and requested a return call.

[11] Later that day the Applicant returned the Commission’s telephone call and advised that she required an extension to file material. The Commission advised the Applicant that she would need to make a written request for an extension to file material urgently and provide reasons for the request. The Commission advised that once this written request was received it would be considered.

[12] No such request for an extension to file material was received from the Applicant.

[13] On 30 December 2019 correspondence was sent to the Applicant’s nominated email address advising her of the s.399A application made by the Respondent on 16 December 2019. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss her application by no later than 4.00pm on 9 January 2020. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice

[14] To date, the Applicant has not filed any material with the Commission.

[15] Section 399A of the FW 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.

[16] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to make a request for an extension to file material and has not provided an explanation to the Commission for her failure to comply with the directions of the Commission.

[18] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR715880>

 1   PR715881.