Sofia Beyene v Adhumic Nominees Pty Ltd as Trustee for the Milcon Properties Unit Trust

[2020] FWC 6397

[2020] FWC 6397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sofia Beyene
v
Adhumic Nominees Pty Ltd as Trustee for the Milcon Properties Unit Trust

(U2020/11529)

DEPUTY PRESIDENT BEAUMONT PERTH, 9 DECEMBER 2020

Application for an unfair dismissal remedy - application to dismiss under s 587 - application for an unfair dismissal remedy dismissed.

[1] On 24 August 2020, Ms Sofia Beyene (the Applicant) filed an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act) (original application). Since filing the original application, the Applicant and her representative have repeatedly failed to communicate in a timely manner with Chambers, have not complied with directions, and have failed to present for conferences on 23 October 2020, 27 November 2020 and 30 November 2020. The Applicant’s conduct has necessarily caused the Commission to consider whether her original application should be dismissed.

[2] In the circumstances of this matter, contacting the Applicant’s representative, Employee Dismissal Claims, was difficult. Furthermore, the correspondence received directly from the Applicant, indicated she may have struggled with English. It is for that reason that the matter became protracted – as multiple attempts were made to secure the Applicant’s attendance at conference.

[3] At this juncture, it should be said that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative. 1

[4] Following the Applicant’s non-compliance with directions on 23 September 2020 and her non-attendance at the conference on 16 October 2020, Chambers issued directions on 23 October 2020 concerning the potential dismissal of the original application. The Commission, in addition, permitted a change of name for the Respondent under s 586 of the Act. The change made was from ‘The Milcon Properties Unit Trust’ to Adhumic Nominees Pty Ltd as Trustee for the Milcon Properties Unit Trust (the Respondent).

[5] The Respondent complied with the directions of 23 October 2020 and filed its materials. Employee Dismissal Claims sent an email to Chambers on that same date excusing the non-attendance of the Applicant on purported issues the Commission had experienced concerning Microsoft Teams. In addition, Employee Dismissal Claims asserted that incorrect contact details had been relied upon. Whilst holding the view that the representative’s reasons for non-compliance and non-attendance were implausible, a conservative approach was adopted because of the Applicant’s perceived literacy challenges, and observing that the conduct of her representative was far from diligent. The Applicant’s representative requested that the Applicant be heard in relation to the potential dismissal of the original application.

[6] A further email was received from Employee Dismissal Claims on 27 October 2020 providing a default telephone number for the purpose of future conferences. While the Applicant sought to be heard concerning the dismissal of the original application, no submissions or other materials were forthcoming (in compliance with the directions of 23 October 2020).

[7] With a view of obtaining the attendance of both Applicant and her representative, on 11 November 2020 the matter was listed for a conciliation conference on 27 November 2020. The parties were directed to confirm their contact details by 17:00hrs (AWST), 25 November 2020. The Applicant did not comply with this direction.

[8] On 26 November 2020, Chambers telephoned both the number given by Employee Dismissal Claims on 27 October 2020 and the Applicant’s personal phone number. On each occasion, the phone call went to voicemail.

[9] On 27 November 2020 at 08:29hrs (AWST) and 08:31hrs (AWST), 30 minutes before the listed conference was to start, Chambers again tried to call the Applicant and Employee Dismissal Claims to no avail. Consequently, the Applicant failed to appear for the listed conciliation conference. The matter was listed for a directions hearing by telephone on 30 November 2020. The parties were directed to provide their best contact number to Chambers by 09:00hrs (AWST), 30 November 2020.

[10] Come 30 November 2020 at 12:51hrs (AWST), Chambers tried to call the Applicant. The call went straight to the message bank of the telephone number provided. At 12:57hrs (AWST), Chambers tried to contact the phone number given by Employee Dismissal Claims (provided on Tuesday 27 October 2020) with the same result as previous attempts. Chambers attempted to contact the Applicant and Employee Dismissal Claims on two more occasions to no avail.

[11] On 30 November 2020, Chambers notified the parties that due to the Applicant’s non-compliance and failure to attend the directions hearing, the matter would be programmed to consider whether the unfair dismissal application should be dismissed. Directions were issued, and the Applicant was directed to provide submissions as to why the original application should not be dismissed under s 587 of the Act by 16:00rs (AWST), 2 December 2020.

[12] On 1 December 2020, the Applicant emailed Chambers stating that ‘the phone number she had provided was her husbands I try to updated the number I send the updated phone number for my representative unfortunately she didn't update it’. There was no further correspondence received from the Applicant or her representative.

[13] Consideration turns to whether the original application should be dismissed. In these types of applications, one is always guided by the principle that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal. 2 That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.3

[14] Latitude has been provided to the Applicant in this matter for the reasons cited. The Respondent and its representative have been most gracious in this respect, with the matter being more protracted than it should have been. In the circumstances, I decided it appropriate to determine the matter on the papers

[15] It would come as no surprise that I have decided to dismiss the original application. In short, the Applicant has unreasonably failed to comply with directions of the Commission relating to the original application, has failed to attend a listed mention/directions hearing, and has not provided any material in support of objecting to the dismissal of the original application, as directed. On any objective level, it can be concluded that the original application has no reasonable prospects of success (see s 587(1)(c) of the Act). An order will issue concurrently with this decision. 4

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Viavattene v Health Care Australia[2013] FWCFB 2532, [39].

 2   Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

 3   Ibid, [31].

 4   PR725297.