Sonia Ustinov v Adrian Gordon T/A Gordon Consulting Engineers

[2013] FWC 1293

[2013] FWC 1293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonia Ustinov
v
Adrian Gordon T/A Gordon Consulting Engineers
(U2012/12638)

COMMISSIONER LEE MELBOURNE, 28 FEBRUARY 2013

Application for unfair dismissal remedy - application dismissed - Fair Work Act 2009, ss.394, 587.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Sonia Ustinov (the Applicant) claims that she was unfairly dismissed from her employment with Adrian Gordon T/A Gordon Consulting Engineers (the Respondent).

Factual background

[2] The application was lodged 23 August 2012. The matter was first listed for conciliation conference on 10 September 2012. Three conferences were adjourned at the request of the Applicant. Following the third adjournment, Fair Work Commission staff sent emails to the Applicant requesting her to contact them so that a new date for conciliation conference could be set. The Applicant was advised that in the absence of a response from her, the matter would be referred to formal proceedings. No response was received from the Applicant and on 4 October 2012 the matter was referred to formal proceedings.

[3] The matter was listed for hearing on 30 November 2012 and directions were issued for the filing of materials. The respondent complied with the directions for filing materials. The Applicant did not comply with directions for filing materials. The Applicant contacted Fair Work Commission staff after the due date for filing materials and sought an adjournment of the hearing and an extension for filing materials on the basis of exceptional personal circumstances. The hearing was adjourned and new directions issued for the filing of materials by the Applicant. The Applicant was directed to file materials by no later than noon 31 December 2012. The Applicant did not file any material with the Commission by that date. The file notes a number of attempts by Fair Work Australia staff to contact the Applicant regarding her failure to file materials; however staff could not contact the Applicant and could not leave voice messages.

[4] The matter was listed for Jurisdiction (Frivolous and Vexatious; No Reasonable Prospects of Success) Conference/Hearing (the hearing) before me on Friday 15 February 2013 to commence at 9:00am in Melbourne. The day prior to the hearing, my associate attempted to contact the Applicant by telephone but could not contact the Applicant and could not leave a voice message. That same day, my associate sent an email to the Applicant and the Respondent requesting confirmation of attendance at the hearing on 15 February 2012. No responses were received. At the hearing, Mr. A. Gordon appeared on behalf of the Respondent. The Applicant did not make an appearance at the hearing.

[5] My associate attempted to contact the Applicant by telephone at approximately 9.05am. The Applicant’s telephone was answered by an unidentified person who advised that the Applicant was at home but unavailable at present and to call back in one hour. My associate advised this person that the matter was urgent and asked the person to advise the Applicant that my associate would call again in 10 minutes. After 10 minutes had passed, my associate attempted to contact the Applicant by telephone but the Applicant did not answer.

[6] The hearing commenced at 9:20am. I explained to the Respondent the circumstances, advised him of my proposed course of action and sought the views of the Respondent. I ultimately determined during the hearing to write to the Applicant, providing her with an opportunity to be heard as to why I should not dismiss the application.

[7] I wrote to the Applicant by letter dated 15 February 2013. I requested a response in writing from the Applicant by close of business Friday 22 February 2013. The letter was sent by email and express post to the Applicant. Transcript of the proceedings on 15 February 2013 was forwarded to the Applicant by email on 20 February 2013.

[8] No written response was received from the Applicant by 22 February 2013. The Applicant contacted my Chambers on 22 February 2013 and left a voicemail message which asked for a return call.

[9] My associate has attempted to contact the Applicant by telephone in response to her voicemail on three occasions but has been unable to contact her. My chambers has not received anything in writing from the Applicant subsequent to 22 February 2013.

The law to be applied

[10] Section 587 of the Act provides as follows;

“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.”

[11] In determining this matter, I have adopted the approach to section 587 of the Act set out by Commissioner Hampton in Nathan Steadman v The South Australian Potato Company Pty Ltd T/A SA Potato Company 1. In that decision, Commissioner Hampton stated;

“For my part, I would take the view that an application could be considered to have no reasonable prospects for success as contemplated by s.587(1)(c) of the Act in circumstances where an applicant fails to attend a hearing to provide evidence to support his/her application. In any event, it is clear that s.587(1) does not purport to be a complete code in relation to the circumstances where an application may, on proper grounds, be dismissed. That much is confirmed by its introduction.

Given the objects of the Act, and in particular those set out in s.381, it could not possibly have been Parliament’s intention that an unfair dismissal application of this nature would be immune from being struck out where the applicant’s conduct had become an abuse of process. The statutory charter and powers of Fair Work Australia require that there be limits on the extent that the dilatory conduct of a party can be inflicted on the other side.” 2

[12] I have also adopted the approach of Deputy President Sams in Richard Carter v The Hanna Group Pty Ltd 3 in considering whether or not to dismiss the application for failure to prosecute;

“I glean from these judgements that the principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:

(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;

(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring ‘a fair go all round’ as referred to in s 381(2) of the Act. That section is expressed as follows:

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;

(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and

(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.” 4

Consideration and conclusion

[13] The Applicant has been afforded numerous opportunities to prosecute the application she has made.

[14] The Applicant has not complied with my direction to provide a written response as to why I should not dismiss the application.

[15] The Applicant did leave a telephone message with my Chambers asking for her call to be returned. Three attempts to return that call have failed. There has been no further contact from the Applicant.

[16] For these reasons, the application is dismissed. An Order [PR534443] will issue concurrently with this decision.

COMMISSIONER

Appearances:

A Gordon, for the respondent.

Hearing details:

2013.

Melbourne:

February 15.

 1   [2011] FWA 1300

 2   Nathan Steadman v The South Australian Potato Company Pty Ltd T/A SA Potato Company[2011] FWA 1300 at [32] - [33]

 3   [2011] FWA 31

 4   Richard Carter v The Hanna Group Pty Ltd[2011] FWA 31 at [6]

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