Shalece Mezzino Campion v Westpac Banking Corporation

[2022] FWC 2053

[2022] FWC 2053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shalece Mezzino Campion
v

Westpac Banking Corporation

(U2022/3572)

DEPUTY PRESIDENT MOLTONI BRISBANE, 3 AUGUST 2022

Application under s.399A – applicant’s failure to comply with directions – no explanation for failure – application dismissed.

1. This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by Westpac Banking Corporation (Respondent) to dismiss an unfair dismissal application brought against it by Ms Shalece Mezzino Campion (Applicant).

1. On 24 June 2022, Deputy President Asbury issued directions (which were later reconfirmed when this matter was reallocated to my Chambers) which required the Applicant to file and serve written submissions in relation to the merits and any witness statements or other material on which the Applicant intended to rely in support of her application for an unfair dismissal remedy by 15 July 2022. The Applicant’s Representative wrote to my Chambers requesting an extension until 18 July 2022. The extension was granted.

1. On 18 July 2022, the Applicant’s Representative wrote again to my Chambers saying they had been “unable to contact [the Applicant] for some time now. If this continues to be an issue, [the Applicant’s Representative] will have to cease representing her”.

1. On 22 July 2022, following an ongoing failure to contact the Applicant, the Applicant’s Representative wrote to my Chambers asking for directions if the Applicant remained unresponsive.

1. On 25 July 2022, I listed the matter for a non-compliance hearing for 10am on Wednesday 27 July 2022 warning that “The Deputy President notes that failure to comply with the Commission’s directions may expose Ms Campion to an application for the dismissal of her application pursuant to s.399A of the Fair Work Act.”

1. The Applicant did not attend the non-compliance hearing on 27 July 2022.

1. On 27 July 2022, in the non-compliance hearing, the Applicant’s Representative gave notice that they had ceased to act for the Applicant as they had been unable to secure instructions from her, their last contact wither being a brief text message on 8 June 2022.

1. On 27 July 2022, the Respondent applied for dismissal of this matter pursuant to s.399A(1)(b) of the Act. On that same day, my Chambers wrote to the Applicant advising her of this application and asking her to provide reasons and evidence as to why her application should not be dismissed as a result of the Applicant’s failure to follow directions and failure to attend a non-compliance hearing. I waived the requirement of the Fair Work Commission Rules (Rules) that the Respondent’s s.399A application be lodged on a Form F1 (the general form to be used for applications in respect of which no other form is prescribed by the Rules). I did so because the grounds for the application were simply and concisely set out in the hearing by the Respondent. However, I declined to dismiss the Applicant’s application at that time and determined instead that it was appropriate to grant the Applicant until 4pm on 2 August 2022 to provide any submissions she may wish to make in response to the Respondent’s application, whereafter I proposed to determine the s.399A application on the papers.

1. On 27 July 2022, my Chambers wrote to the Applicant advising her of the outcome of the non-compliance hearing and affording her with the opportunity to respond to the Respondent’s application prior to making any determination on the papers as noted in the preceding paragraph and also setting out all of the directions that had at that stage not been complied with.

1. The Applicant did not respond and did not make any submissions.

1. Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s.399A(1)(b)). I am satisfied that the Applicant unreasonably failed to comply with Deputy President Asbury’s directions of 24 June 2022, my directions of 25 July 2022 and that she failed to attend the non-compliance hearing of 27 July 2022. The details of those directions and the hearing are set out in the preceding paragraphs. The Applicant failed to comply with those directions and failed to attend the hearing as directed. I consider that the failure was unreasonable for the following reasons:

(A)The Applicant has repeatedly failed to offer any reasonable explanation for her failure to comply with the directions.

(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress her non-compliance but has failed to do so. In particular, the application was listed for a non-compliance hearing, which, as I explained to the Applicant, was to serve the purpose of allowing her to explain why she had failed to comply with the directions, but she did not attend the hearing. Nor has the Applicant since provided an acceptable explanation for her failure or given any indication that she intends to file her materials in the near future. Nor has the Applicant filed any submissions as to why her application should not be dismissed pursuant to the s.399A application brought by the Respondent.

1. My discretion to dismiss the Applicants’ unfair dismissal application under s.399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for her failure to comply with my directions and the fact that she has persisted in failing to file her materials. She also failed to attend the non-compliance hearing. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application. The Respondent is entitled to understand the case that is put against it in good time so that it may properly respond. This is a matter of basic fairness.

1. For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.399A.

1. Pursuant to s.399A, the Applicant’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

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