Stephanie Mazzone v Central Gippsland Health Service (CGHS)
[2022] FWC 171
•28 JANUARY 2022
| [2022] FWC 171 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephanie Mazzone
v
Central Gippsland Health Service (CGHS)
(U2021/9419)
| DEPUTY PRESIDENT MANSINI | MELBOURNE, 28 JANUARY 2022 |
Application for an unfair dismissal remedy.
Ms Mazzone (Applicant) has applied for an unfair dismissal remedy in relation to the cessation of employment with Central Gippsland Health Service (Respondent) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
I have determined to dismiss the application. The reasons for this decision follow.
Context
The application was filed on 20 October 2021. Following an initial attempt at conciliation before a staff conciliator, the file was allocated to my chambers.
On 30 November 2021, the Applicant, the Applicant’s support person, the Respondent and the Respondent’s representative attended an initial mention at which the program (for filing of materials, a further conference and a hearing) was discussed. Written directions were subsequently issued to the parties at their nominated email addresses for service (Commission’s Directions) which confirmed the outcome of the mention (what was required to be done, by when) and included the following important note:
Important note: Failure to comply with these Directions and/or attend the Hearing may result in the application being dismissed or determined on whatever materials are before the Commission without hearing further from you.
A notice of listing, instructions for attending an online hearing via MS Teams, additional resources and sources to assist the parties in their preparation for the hearing were also provided.
There was then some non-compliance with the Commission’s Directions in that:
· by 4.00pm on 21 December 2021, the Applicant did not file a signed and dated witness statement on behalf of herself or any witness to be called, did not file any other document or otherwise communicate with the Commission;
· at 4.30pm on 21 December 2021, the Respondent’s representative raised the non-compliance (by email, copying the Applicant and her support person);
· at 9.50am on 22 December 2021, the Applicant sought to file some materials by way of emails with various attachments but did not include a signed and dated witness statement of the Applicant’s own account, in support of the claim;
· on 23 December 2021, at the request of the Respondent’s representative and by consent of the Applicant, the Commission’s Directions were amended to afford the Applicant more time such that the Applicant was to file with the Commission and serve on the Respondent a signed and dated witness statement by 4.00pm on 30 December 2021 (Commission’s Amended Directions). The Commission’s Amended Directions reiterated the consequences of non-compliance with directions of the Commission.
On 30 December 2021, a witness statement of the Applicant was filed and served on the Respondent.
On 17 January 2022, the parties participated in a further attempt at conciliation before another Member of the Commission, as directed. As the matter was not resolved it remained listed for hearing at 10.00am on 24 January 2022. On 21 January 2022, the Applicant filed a submission in opposition to the Respondent’s request to be represented by a lawyer or paid agent at the hearing.
At 10.00am on 24 January 2022, the Applicant did not attend the online hearing and was not able to be reached on the nominated telephone number at the commencement time. A voice message was left for the Applicant to join the hearing or contact chambers as soon as possible. The Applicant’s support person did not attend the hearing but was able to be reached by telephone and advised that the Applicant would not be attending the hearing.
The Respondent, its representative and witness(es) were in attendance at the hearing.
Accordingly, the hearing commenced. The Respondent notified of its intention to apply for the Commission to dismiss the matter pursuant to s.399A. At 11.58am that same day, the Respondent filed a s.399A application to dismiss the Applicant’s unfair dismissal claim which was served on the Applicant and her support person at their nominated email addresses for service.
On 24 January 2022, correspondence was sent from my chambers to the nominated email addresses for the Applicant and the Applicant’s support person. That correspondence attached the Respondent’s s.399A application and invited a response by way of the following (Commission’s Further Directions):
What do you need to do now?
As the Applicant did not attend the hearing, and did not request an adjournment or otherwise communicate with the Commission in advance of the hearing, it is understood that the Applicant does not wish to proceed with the claim. In that case, the Commission’s file would be closed and no further action would be required of the parties.
Otherwise, the Applicant’s non-compliance, failure to attend and the Respondent’s application to dismiss the claim will need to be addressed before the claim can proceed. In that case, the Commission would direct a program for filing of evidence and submissions before determining whether to dismiss the claim.
By 10am on Tuesday 25 January 2022, the Applicant is directed to respond to this email to confirm her withdrawal of the claim or otherwise.
Important note: any failure to respond to this direction will result in the Commission proceeding to dismiss the unfair dismissal claim pursuant to s.399A.
Also on 24 January 2022, an SMS was sent to the Applicant’s nominated telephone number, as follows:
The Fair Work Commission has sent Directions in U2021/9419 to your email address.
Important note: any failure to respond to this direction will result in the Commission proceeding to dismiss the unfair dismissal claim pursuant to s.399A.
If you have any questions regarding this matter please call 03 8656 4537.
DO NOT REPLY BY SMS
As at the time of publication of this decision, the Applicant has not filed any materials in response to the Commission’s Further Directions or responded to any of the Commission’s attempts to contact her on and since 24 January 2022.
Statutory Context
An unfair dismissal application made under s.394 may be dismissed if the Commission is satisfied that the applicant has unreasonably failed to attend a hearing or failed to comply with a direction or order of the Commission relating to the application (s.399A(1)(a) and (b)).
The power to dismiss an application if the non-compliance was unreasonable is discretionary and may only be exercised on application by the employer (s.399A(2)).
The Commission is not required to hold a hearing except as provided by the Act (s.593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s.399).
Consideration and conclusion
The Respondent, being the employer party to the application, has applied for the Commission to exercise its discretion to dismiss the application pursuant to s.399A.
Taking into account the views provided by the Respondent and the Applicant’s election not to provide any views on the matter, I consider it appropriate to determine the Respondent’s s.399A application on the papers.
The Applicant was on notice and aware of, but did not attend or seek an adjournment of, the hearing in this matter. The Applicant was also on notice of the consequences of such failure to attend. The Applicant did not avail of the opportunity to respond to the Respondent’s s.399A application, did not seek any dispensation, amendments or adjournment and indeed has not corresponded with the Commission at all despite the numerous attempts made to communicate since the non-attendance.
In these circumstances, I am satisfied that the Applicant has unreasonably failed to attend a hearing held by the Commission relating to this application and unreasonably failed to respond to directions of the Commission relating to this application. Accordingly, the application is dismissed pursuant to s.399A.
DEPUTY PRESIDENT
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