Sophie Harrison-Comrie v Migas Apprentices and Trainees Pty Ltd

[2017] FWC 3986

[2017] FWC 3986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sophie Harrison-Comrie
v
Migas Apprentices & Trainees Pty Ltd
(U2017/6039)

COMMISSIONER SAUNDERS NEWCASTLE, 28 JULY 2017

Application for an unfair dismissal remedy – application under s.399A for the Commission to dismiss application for failure by applicant to attend a hearing held by the Commission – unfair dismissal application dismissed

[1] This decision concerns an application made by Ms Sophie Harrison-Comrie pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Migas Apprentices & Trainees Pty Ltd (respondent).

Background

[2] Ms Harrison-Comrie filed her unfair dismissal application with the Fair Work Commission (Commission) on 6 June 2017.

[3] On 20 June 2017, the respondent lodged its response to Ms Harrison-Comrie’s unfair dismissal application.

[4] On 26 June 2017, a conciliation conference was conducted and was unsuccessful in resolving the matter.

[5] Following the unsuccessful conciliation conference, the matter was allocated to my chambers on 28 June 2017.

[6] The matter was listed for a directions hearing, by telephone, on 11 July 2017 at 9:30am. A Notice of Listing was sent to Ms Harrison-Comrie’s nominated email address on 29 June 2017.

[7] At the directions hearing on 11 July 2017 there was no appearance by or on behalf of Ms Harrison-Comrie. At 9:35am my Associate contacted Ms Harrison-Comrie on her mobile number and was advised by Ms Harrison-Comrie that she did not know about the listing and was unable to dial into the teleconference as she was currently in an interview. Ms Harrison-Comrie was asked to confirm her email address. Ms Harrison-Comrie confirmed that the email address she had nominated in her unfair dismissal application as her preferred means of receipt of documents from the Commission was correct. Ms Harrison-Comrie was then advised that my Associate would be in contact with her later that day regarding relisting the matter for directions.

[8] My Associate attempted to contact Ms Harrison-Comrie on her mobile number a number of times on 11, 12 and 13 July 2017 regarding relisting the matter for directions. No contact was made, however a voicemail message was left requesting Ms Harrison-Comrie to call our chambers urgently, to which we received no response.

[9] The matter was relisted for a second directions hearing, by telephone, on 20 July 2017 at 9:00am. A Notice of Listing was sent to Ms Harrison-Comrie’s nominated email address on 14 July 2017.

[10] At the directions hearing on 20 July 2017 there was again no appearance by or on behalf Ms Harrison-Comrie and she was unable to be contacted on her mobile number.

[11] The matter was relisted for a third directions hearing, by telephone, on 28 July 2017 at 9:00am. A Notice of Listing for the new directions hearing on 28 July 2017 was sent to Ms Harrison-Comrie’s nominated email address on 20 July 2017.

[12] On 26 July 2017, my Associate attempted to contact Ms Harrison-Comrie on her mobile number. No contact was made, however a voicemail message was left advising her of the time and date for the new directions hearing, by telephone, on 28 July 2017, to which we received no response.

[13] At the directions hearing on 28 July 2017 there was again no appearance by or on behalf of Ms Harrison-Comrie.

Legislation

[14] During the directions hearing on 28 July 2017 the respondent made an application pursuant to s.399A of the Act for Ms Harrison-Comrie’s unfair dismissal application to be dismissed on the basis that Ms Harrison-Comrie had failed to attend three directions hearings in the matter.

[15] Section 399A of the Act provides as follows:

“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 powers under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[16] The discretion of the Commission to dismiss an application under s.399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

Conclusion

[17] In light of the history of the proceedings outlined above and the failure of Ms Harrison-Comrie to attend three directions hearings in this matter without explanation (in respect of the second and third directions hearings), I am satisfied that Ms Harrison-Comrie has unreasonably failed to attend hearings held by the Commission relating to her unfair dismissal application. I am also satisfied that there has been an application by the employer in accordance with s.399A(2) of the Act.

[18] In all the circumstances of this case, I consider it appropriate to exercise my discretion pursuant to s.399A(1)(a) of the Act to dismiss Ms Harrison-Comrie’s unfair dismissal application.

COMMISSIONER

 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]

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