Sindi Pidwell v My Body Dental Pty Ltd

[2020] FWC 6509

[2020] FWC 6509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sindi Pidwell
v
My Body Dental Pty Ltd
(U2020/12859)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 8 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 25 September 2020 Ms Sindi Pidwell (Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Act) seeking a remedy in relation to her dismissal from employment with My Body Dental Pty Ltd.

[2] The matter was listed for conciliation by telephone before a staff conciliator on 13 October 2020. An SMS reminder was sent to the parties on 12 October 2020. Despite several attempts to contact the Applicant by telephone on 13 October 2020, the conciliation did not proceed because the Applicant failed to attend. The matter was subsequently allocated to me for determination.

[3] The application was listed for a case management conference on 30 October 2020. On 30 October 2020 the Applicant emailed my Chambers as follows:

“Is there any other way to deal with this situation?

I dont (sic) want to talk to my old boss on the phone, also majority of what he has wrote about my performance at work isn't true, so I dont (sic) see us getting anywhere.

I also work Monday to Friday 8 - 6 and on Fridays I dont (sic) get a break from being on the phone at work sorry

Regards,

Sindi”

[4] The case management conference listed for 30 October 2020 was vacated and the Applicant was asked to advise of her availability to attend a directions hearing by 5:00 pm on 2 November 2020. The Applicant failed to advise of her availability and on 4 November 2020 my Associate again wrote to the Applicant requesting she advise of her availability as soon as possible. No response was received from the Applicant and my Associate attempted unsuccessfully to contact her by telephone on 5 and 6 November 2020.

[5] In the absence of any response from the Applicant, the matter was programmed for a further case management conference to be conducted by telephone on 13 November 2020. Despite several attempts to contact the Applicant by telephone, she did not attend the case management conference.

[6] At the conclusion of the conference on 13 November 2020 my Associate sent email correspondence to the Applicant requesting an explanation of her failure to attend on 13 October 2020 and 13 November 2020. The Applicant was advised that if no response was received, the application may be dismissed.  

[7] The Applicant did not response to the email correspondence of 13 November 2020 and on 24 November 2020 the Respondent wrote to my Chambers requesting that the application be dismissed.

[8] On 25 November 2020, my Associate wrote to the Applicant by email directing her to file submissions in response to the Respondent’s application that the matter be dismissed by 5:00 pm on 2 December 2020.

[9] At the time of this Decision, the Applicant has not responded to the email of 25 November 2020 and has not filed any material in opposition to the Respondent’s application seeking a dismissal of the application.

[10] I have decided to dismiss the Applicant’s application pursuant to s.399A of the Act. Section 399A of the Act describes some of the circumstances upon which an application for an order under Division 4 of the Act can be dismissed. Section 399A 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.

Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[11] In deciding to dismiss the unfair dismissal remedy application, I have had regard to the observation in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others that the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution. 1 Nonetheless this is a case where it is plainly appropriate to exercise my discretion to dismiss.

[12] Other than the initial lodgement of her application, the Applicant has failed to participate in the prosecution of her case. Despite attempts to accommodate the Applicant’s availability she has failed to attend conciliation or a case management conference and has not provided any satisfactory explanation for these failures. The Applicant has been given adequate opportunity to participate in the conduct of her matter and was on notice of the possible consequences should she continue to fail to so do. It is highly unsatisfactory for an Applicant to lodge a claim for relief in this Commission and then consistently fail to attend scheduled listings. In the circumstances, I am satisfied that dismissing the application at this time could not be described as hasty.

[13] The Respondent has made an application seeking dismissal of the application on the grounds that the applicant had failed to attend a conference. The Applicant has been made aware of the application but has not filed any material in opposition. Taking into account the statutory scheme and the circumstances of this case, I am satisfied that the Applicant has unreasonably failed to attend a conference conducted by the Commission in relation to her application. There are no compelling reasons of which I am aware that would suggest I should not exercise my discretion and dismiss the application. In the circumstances, I am persuaded that I should exercise my discretion pursuant to s.399A of the Act to dismiss the Applicant’s application.

Order

[14] The application for an unfair dismissal remedy in U2020/12859 is dismissed.

DEPUTY PRESIDENT

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 1 (1964) 112 CLR 125 at 128-9