Shandella Mildren v Integrated FM Group
[2022] FWC 3156
•29 NOVEMBER 2022
| [2022] FWC 3156 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shandella Mildren
v
Integrated FM Group
(U2022/8561)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 29 NOVEMBER 2022 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.
On 21 August 2022, Ms Shandella Mildren (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 Integrated FM Group (the Respondent) was unfair.
Following allocation of the matter, directions were issued to the parties by my Chambers on 26 October 2022 setting down a timetable for the filing of material by both parties. The directions required the Applicant to file and serve on the Respondent by close of business Monday 21 November 2022 any submissions, witness statements and other material on which she sought to rely on in relation to the merits of her application. The Respondent was then required to file its material in reply by the close of business on Monday 5 December 2022. The Applicant was then to file reply material by close of business Monday 12 December 2022. The matter was listed for hearing on 22 December 2022 to deal with the merits of the application.
The matter was also listed for Conference/Mention on Monday 7 November 2022. The Applicant emailed Chambers on Wednesday 2 November 2022 advising that she was not available on that date. The Conference/Mention was subsequently re-listed for Tuesday 8 November 2022. The Applicant again emailed Chambers on Sunday, 6 November 2022 advising that the only date she would be available was Thursday 10 November 2022. The Conference/Mention was subsequently re-listed for Thursday 10 November 2022. On Monday 7 November 2022 the Respondent emailed Chambers advising that they were unavailable on Thursday 10 November 2022. Chambers then emailed the parties providing alternative times for the Conference/Mention and sought advice as to the availability of the parties. No response was received and as such the Conference/Mention was re-listed for Thursday, 17 November 2022 and a notice of listing reflecting this change was sent to the parties.
The Conference/Mention proceeded on 17 November 2022 at which the Respondent attended. My Associate attempted to make contact with the Applicant several times on the afternoon of the Conference/Mention on the number listed on the Form F2. A voice message was left by my Associate advising the Applicant of the Conference/Mention and requesting a call back. The Applicant did not answer or return the calls made by my Associate.
The directions issued to the parties on 26 October 2022 relevantly included the following;
“……………
SUBMISSIONS AND WITNESS STATEMENTS
[3] The submissions must include all relevant facts, dates and incidents to support all claims made.
[4] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.
[5] Please note that witness statements are designed to take the place of evidence-in-chief.
……………………….
NON-COMPLIANCE WITH THESE DIRECTIONS
[8] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.
[9] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.
……………….”
The Applicant failed to file her material on or by close of business 21 November 2022 in accordance with the directions issued on 26 October 2022. Correspondence was then sent by my Chambers to the Applicant on the morning of 22 November 2022 requiring that the Applicant file her material by the close of business 22 November 2022 failing which a non-compliance hearing would be listed to which she would be required to attend.
The Applicant failed to file her material by the close of business on Tuesday 22 November 2022. As a consequence, the matter was listed for an on-line non-compliance hearing at 1.00pm on 24 November 2022. Prior to commencement of the hearing my Associate again attempted to contact the Applicant by telephone. The Applicant did not answer or return the calls made by my Associate or attend the non-compliance hearing. The non-compliance hearing was attended by Mr Cameron who is the Managing Director of the Respondent. Mr Cameron made an oral application at the non-compliance hearing that the Applicant’s unfair dismissal application be dismissed pursuant to s.399A(1) of the Act.
Correspondence was sent by my Chambers on Thursday 24 November 2022 to the Applicant following the non-compliance hearing advising her that an application had been made by the Respondent pursuant to s.399A(2) of the Act that her application for an unfair dismissal remedy be dismissed pursuant to s.399A(1) of the Act. The Applicant was invited to provide submissions by close of business on Monday 28 November 2022 as to why her application should not be dismissed. The Applicant was also advised that should she seek to be heard in relation to the s.399A application she should advise my Chambers. Otherwise, the s.399A application would be dealt with on the papers. No submissions were filed by the Applicant in response to the correspondence from the Commission sent to her on 24 November 2022.
Consideration
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.”
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 an unfair dismissal remedy by the close of business on Monday 28 November 2022, I will determine the application on the papers.
The Applicant has demonstrated a pattern of non-compliance with directions of the Commission by failing to attend the Mention on 17 November 2022, by failing to attend the non-compliance hearing on 24 November 2022 and by not filing any materials by the 21 November 2022 as required by the directions. The conduct was unreasonable in the circumstances, firstly where the directions set out the Commission’s expectations of the parties regarding compliance with directions and secondly where she failed to answer or return phone calls made to her by my Associate.
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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