Sienna Denman v LAMRIT Pty Ltd
[2024] FWC 2832
•15 OCTOBER 2024
| [2024] FWC 2832 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sienna Denman
v
LAMRIT Pty Ltd
(U2024/5251)
| COMMISSIONER ALLISON | MELBOURNE, 15 OCTOBER 2024 |
Application for an unfair dismissal remedy – applicant failed to engage in the process – want of prosecution – application dismissed.
On 8 May 2024, Ms Sienna Denman made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, against LAMRIT Pty Ltd (the Employer). The Employer disputes the application and has raised a jurisdictional objection that Ms Denman was not dismissed.
For the reasons given below, I have determined to dismiss Ms Denman’s unfair dismissal claim for want of prosecution, pursuant to s.587(1) of the Act.
Background
Ms Denman made an application for unfair dismissal remedy on 8 May 2024, using the Commission’s online lodgement system. In her Form F2, Ms Denman provided a mobile number, a landline, and an email address, all of which have been used by the Commission through the conduct of this matter.
The application was first listed for conciliation before a staff conciliator, on Friday 28 June 2024. On Thursday 27 June 2024, Ms Denman sent an email to the Commission as follows:
“Hello, unfortunately I won’t be able to attend tomorrow mornings meeting.
I have placement for school that I can’t get out of can we please reschedule.
Thanks Sienna”
The conciliation was rescheduled to Friday 26 July 2024. Ms Denman did not attend the conciliation, but sent a further email to the Commission shortly after the scheduled conciliation time stating:
“Hi, Sorry i did explain on the phone last time when i was rescheduling this meeting that i can’t do it on Friday’s however it was on one anyways.
Thanks Sienna”
The Commission attempted to arrange a third conciliation on Tuesday 27 August 2024. Ms Denman did not attend the conciliation.
Ms Denman’s application was allocated to my Chambers on 28 August 2024. Chambers attempted to contact Ms Denman via her provided phone numbers. Ms Denman did not respond to any calls to her mobile number. My Associate established contact with a person when dialling Ms Denman’s provided landline number, however the recipient immediately ended the call after my Associate identified himself as calling from the Fair Work Commission.
On 2 September 2024, Chambers issued a Notice of Listing to the parties for a Case Management Conference on 17 September 2024. The Notice of Listing required parties to confirm their appearances by no later than 5:00PM on Friday 13 September 2024.
On 16 September 2024, my Chambers sent a further email to Ms Denman, noting that we had not received a confirmation of her attendance. Ms Denman replied by email as follows:
“hello, I finish school in 3 weeks can we please make it then because I can’t do any times within school especially on a tuesday and friday?
thanks sienna”
At approximately 12:20PM that day, my Chambers attempted to contact Ms Denman via her mobile number. Ms Denman did not respond to the call, but promptly after my Chambers received a return call from Ms Denman’s number. My Associate answered the call saying “Good afternoon, you’ve reached Commissioner Allison’s Chambers at the Fair Work Commission.” In response the person on the other end of the call, who I reasonably determine was Ms Denman, immediately ended the call and did not answer a follow-up return call from my Associate.
At approximately 3:10PM that day, my Chambers sent a further email to Ms Denman which stated:
“Your Reschedule Request
Commissioner Allison has considered your request and has cancelled the Case Management Conference. Noting that you will finish school in three weeks, the Commissioner has relisted the Case Management Conference for 9:30AM on Monday 7 October 2024. The Commissioner expects you to be able to attend at this time.
The link to join the Case Management Conference is provided below for your convenience.
Join the Case Management Conference for U2024/5251 on 7/10/2024
At the Conference, the Commissioner will discuss the Directions (see below) and whether the Application can be resolved other than by formal arbitration. If the matter does not resolve, then the application will proceed to arbitration on Friday 1 November 2024.
Directions
To ensure your application can progress, the Commissioner has issued the attached Directions which outline how your matter will proceed.
Please open and read these Directions carefully. Under these Directions, you will need to file written material to support your application on 14 October 2024 and 28 October 2024. You will also need to attend a hearing in Melbourne on Friday 1 November 2024. If you do not comply with the Directions, the Commissioner may dismiss your application for non-compliance.
Any Further Adjournment Requests
Please note that as a party in Fair Work Commission proceedings, you have a responsibility to the Commission to take steps to progress your application. This includes responding to emails and phone calls from the Commission and making yourself available when your matter is listed for a Conference or Hearing. Matters in the Commission are listed at 9:00AM – 6:00PM on weekdays.
The Commissioner is open to accommodating you and your education timetable. However, any further requests to change any dates in the Directions must provide specific details around:
·Why you cannot attend; and
·Which days and times you cannot attend; and
·Which days you are available.
If you would prefer to discuss this over the phone, please contact me at 03 8656 4503.”
(original emphasis)
I relisted the Case Management Conference at 9:30AM on Monday 7 October 2024. On 4 October 2024, my Chambers sent a further email reminding the parties that the Case Management Conference was proceeding and requesting that the parties confirm appearances.
Ms Denman did not confirm her appearances or attend the Case Management Conference. My Chambers attempted to contact her via both her provided mobile number and landline and was unable to establish contact with Ms Denman. The Case Management Conference proceeded without Ms Denman.
At approximately 5:00PM on 7 October 2024, my Chambers sent a further email to the parties noting Ms Denman’s non-compliance, which stated as follows:
“Dear Parties,
RE: U2024/5251 - Sienna Denman v LAMRIT PTY LTD
I refer to the above matter, which was listed for a Case Management Conference at 9:30am today, Monday 7 October 2024.
Commissioner Allison notes that Ms Sienna Denman (the Applicant) failed to appear at this Conference. No request for a further adjournment was received by this Chambers and the Applicant could not be contacted on either of her nominated telephone numbers.
In light of the Applicant’s non-appearance, the Commissioner wishes to draw attention to the following:
This matter was initially listed for Case Management Conference at 3:30PM on 17 September 2024 by Video using Microsoft Teams. On 16 September 2024, Ms Denman requested that the conference be re-listed at least three weeks from the date of her email as that would be after the Applicant finished school. The Case Management Conference was cancelled and re-scheduled to occur today, to accommodate the Applicant’s education timetable. As foreshadowed in the email sent to the parties on 16 September 2024 which provided the revised Notice of Listing and Directions, a failure by the Applicant to comply with Directions may result in the Commissioner dismissing the application for non-compliance.
The Applicant has previously failed to attend conciliation conferences before a Fair Work Commission Staff Conciliator.
Given Ms Denman’s failure to comply with directions and attend conferences, Commissioner Allison is considering whether the application should be dismissed for want of prosecution.
Next Steps – Ms Denman
Commissioner Allison directs you to file with the Commission and serve on the Respondent submissions addressing why you did not attend the conference today, and why the Commission should not dismiss your application. You should also provide any evidence, including documentary evidence. For example, if you are or have been unwell, the Commission requires a medical certificate. This material is required by no later than 5:00pm, Thursday 10 October 2024.
If you file material by the due date the Commission will consider your submissions and may deal with the application on the papers or list the matter for a brief hearing.
If you no longer wish to pursue your application for unfair dismissal and do not intend to address these directions above, please file a completed Form F50 - Notice of Discontinuance (see attachment).
If you don’t provide your reasons by 5:00pm, Thursday 10 October 2024, your application may be dismissed without further notice.”
(original emphasis)
Following this email, my Chambers made further attempts to contact Ms Denman as follows:
On 9 October 2024, a phone call to Ms Denman’s mobile number;
On 9 October 2024, an SMS to Ms Denman’s mobile number, advising that her submissions had not been filed;
On 10 October 2024, an SMS to Ms Denman’s mobile number, advising that her matter was at risk of being dismissed for non-compliance with Directions and requesting that she contact Chambers urgently;
To date, Ms Denman has not provided any further response to the Commission.
Relevant Legislation and Case Law
Section 587 of the Act sets out the basis upon which the FWC may dismiss an application:
“587 Dismissing applications
(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note:For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
It is well established that the three specific grounds for dismissal of an application under s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative.[1] Dismissal of an application “for want of prosecution” is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.[2]
In Raschilla v Ausino West Pty Ltd[3] (Ausino) the Full Bench emphasised that the Commission’s powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an applicant’s right to have their substantive application heard and determined by the Commission.
Consideration – Should Ms Denman’s application be dismissed?
The Commission used the email address and phone numbers provided by Ms Denman in her Form F2 to communicate with her regarding the requirements for the progression of her unfair dismissal remedy application. It is apparent that Ms Denman has received communication from the Commission on email because she has corresponded via email to make adjournment requests. It is also reasonably apparent that Ms Denman is contactable on the phone numbers provided as phone calls to these numbers have been answered twice.
Ms Denman’s application has been listed for three staff conciliations and two case management conferences to date. For two of these five proceedings, Ms Denman informed the Commission of her unavailability one day before the listed proceeding and was granted adjournments. For the other three proceedings, Ms Denman has failed to attend the proceedings without any attempt to seek an adjournment or properly excuse her absence.
Ms Denman has been both unresponsive and at times, actively uncooperative, to further attempts to contact her by email or telephone. She has not complied with my directions dated 16 September 2024 to submit material supporting her claim. Nor has she complied with my direction of 7 October 2024 to submit material providing reasons for her absence or for why the Commission should not dismiss her application. The phone calls made to her provided numbers have either gone unanswered or been ended promptly by Ms Denman upon her discovery that the Commission was contacting her.
Considering the events outlined above, I am satisfied that despite being properly advised of the various opportunities to advance her case, Ms Denman has failed to take any sufficient actions to engage with the Commission following the lodgement of her application. I have provided Ms Denman multiple, reasonable opportunities and have expressly put her on notice that a failure to engage with the Commission by the due date would lead to the dismissal of the application without further notice. The Commission must also take account of the interests of the Respondent in its case management of the application.
As noted above, s.587(1) does not limit when the Commission may dismiss an application. Ms Denman has, in effect, abandoned her application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter. I am satisfied that I should exercise my discretion to dismiss Ms Denman’s application.
Ms Denman’s application under s.394 is therefore dismissed.
COMMISSIONER
[1] Bosworth v Coles Supermarket Beechboro[2022] FWCFB 153, [48].
[2] Ibid.
[3] [2017] FWCFB 5952.
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