Susan Elms v West Farmers T/A Bunnings

[2021] FWC 5539

[2021] FWC 5539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Susan Elms
v
West Farmers T/A Bunnings
(U2021/5169)

DEPUTY PRESIDENT LAKE BRISBANE, 6 SEPTEMBER 2021

Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.

[1] On 14 June 2021, Susan Elms (theApplicant) lodged an application with the Fair Work Commission (theCommission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by West Farmers T/A Bunnings(theRespondent). The Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.

Legislation

[2] Section 399A of the FW Act provides:

“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 other 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.”

Procedural background

[3] In her original application, the Applicant had stated that her date of dismissal was 21 May 2021. That would have put her application outside the 21 day time limit imposed by s.392(2) of the Act. When she was notified of this by the Commission, the Applicant stated that she had recorded the wrong date and that she had in fact been dismissed on 25 May 2021.

[4] The matter was allocated to my Chambers on 21 July 2021 for determination regarding whether the application had been lodged within the prescribed time period and, if not, whether an extension should be granted. A notice of listing and directions were sent from my Chambers later that day requiring both parties to address those questions.

[5] On 29 July 2021, the Respondent filed its response in respect of the jurisdictional objection. In it, the Respondent confirmed that the Applicant’s employment was terminated on 25 May 2021 and that it was therefore made within time. The Respondent further confirmed that it did not have any jurisdictional objection to Ms Elms lodging an unfair dismissal claim.

[6] Consequently, on 30 July 2021, my Chambers wrote to both parties indicating that there will be no jurisdictional hearing and I would simply deal with the merits. A notice of listing was sent which required both parties to attend conferences on 5 August 2021 and 30 August 2021, before the final hearing of 3 September 2021. Additionally, that notice attached directions, which required the Applicant to file and serve an outline of submissions, witness statements and other documentary material in support of her Application by Wednesday, 11 August 2021. The Respondent was then directed to file and serve any material it intended to rely on in opposition to the application in this matter by Friday, 20 August 2021. The Applicant was then to file any material in reply by Friday, 27 August 2021.

[7] On 2 August 2021, the Respondent filed its Form F3 Employer Response and its supporting documentation.

[8] On 5 August 2021, both parties attended the conference and some attempts were made to resolve the matter between them. Ultimately, those attempts were unsuccessful and we proceeded to discuss the dates by which material needed to be filed and the hearing would take place. The Applicant sent an email on 8 August 2021 to the Chambers of another member of the Commission, regarding the settlement discussions, which subsequently made its way to my Chambers.

[9] On or before 12 August 2021, the Applicant left a voice message with my Chambers. My Associate called her back on 12 August 2021 and clarified that as no settlement had been reached, the matter would proceed to hearing. My Associate informed the Applicant that my Directions had required the Applicant to file her material by yesterday, but that she would ask me if I was minding to provide an extension so that the Applicant could file her material.

[10] On 12 August 2021, my Associate confirmed that I would allow the Applicant until 4pm on 13 August 2021.

[11] On 13 August 2021 at 9:47am, my Chambers received an email from the Applicant that simply said, “Sent from my iPhone”. My Associate responded to that email at 10:13am stating that an email had been received from the Applicant, but that “there is no text (other than ‘sent from my iPhone) or attachments. I thought I’d let you know in case you had intended to provide further material.”

[12] On 26 August 2021, my Associate received another call from the Applicant, who was asking about the process. The Applicant indicated she was willing to resume the settlement discussions. My Associate told her that she could do so at the conference but if it is not settle it would proceed to hearing.

[13] Later that day, the Respondent emailed Chambers (copying the Applicant) indicating that they had not received any further material from the Applicant. My Associate then called the Applicant again to follow up about the fact that no further material had been filed after the application itself. The Applicant did not answer and my Associate left a message.

[14] At 11:56am on 26 August 2021, my Associate responded to the Respondent’s email (copying the Applicant) as follows:

“Dear Ms Danrell

I have not received any further response. I understood from Ms Elms’ silence that she did not intend to file anything else but rely on what had already been filed. However, for clarity, Ms Elms, please indicate whether you intend to file anything else by close of business today.”

[15] At around 12:16pm, the Applicant called my Chambers and told my Associate that she will try and resend the material that afternoon. My Associate send an email to all the parties indicating that she had spoken to the Applicant who had told her she would file the attachment that afternoon.

[16] By the following morning, no material had been received from the Applicant and my Associate sent the following email to the parties:

“Good morning

I refer to the above matter, which was listed at 10am on 3 September 2021. The matter will now commence at 11am on that day. This email is in lieu of an updated notice of listing.

Ms Elms, I have not yet received any further documentation. Please indicate as a matter of urgency whether you intend to file any further material and, if you do, please provide that material.”

[17] No response was received.

[18] On 30 August 2021, at the time of the scheduled conference, my Associate attempted to contact the parties. The Respondent attended, however, despite calling the Applicant three times and leaving three voice messages, the Applicant could not be contacted. An email was sent to the parties detailing these attempts and continued:

“…In light of the Applicant’s failure to attend the conference this afternoon, without notice of her inability to attend or any contact seeking an adjournment, the Deputy President must now turn his mind to whether the application should be dismissed for a failure of the Applicant to prosecute the matter. This is particularly so in light of the Applicant’s failure to provide any further submissions in accordance with the Deputy President’s directions. You indicated over the phone that you intended to file submissions in addition to the Form F2, however nothing has been received despite the hearing being scheduled for this Friday, 3 September 2021.

Directions to the Applicant

The Applicant is directed to provide a written explanation as to the circumstances around her failure to attend today’s conference and failure to provide submissions in accordance with the Deputy President’s directions, as well as submissions as to why the matter should not be dismissed to Chambers and copied to the Respondent, by midday on Tuesday, 31 August 2021.

Directions to the Respondent

The Respondent is invited to provide any response to the Applicant’s request for the matter to proceed by hearing, in writing to Chambers and copied to the Applicant, by midday on Wednesday 1 September 2021.

The Deputy President will then determine the matter of whether the application should be dismissed, or proceed to hearing as listed.

If the Applicant fails to file these submissions as directed, the application may be dismissed and it will be a matter for the Respondent whether it seeks an order for costs against the Applicant.”

[19] On 1 September 2021, the Respondent filed a Form F1 seeking that the Applicant’s application be dismissed. Later that day, my Chambers emailed both parties stating that:

Good morning

I confirm receipt of that Application.

Ms Elms, you have until midday tomorrow, 2 September 2021 to respond to the Respondent’s application which seeks that your application be dismissed.”

[20] No response having been received by 12:16pm the following day, my Associate again tried to call the Applicant. She did not answer and a message was left asking that she return the call as a matter of urgency.

[21] Given the proximity in time to the hearing, and the fact that the Applicant had filed a Form F2, I did not think it would be appropriate to dismiss the application immediately.

[22] On 3 September 2021 at 11am, the Respondent had joined the Microsoft Teams meeting that had been provided to the parties. The Applicant had not joined, so my Associate attempted to contact her. She did not answer and a message was left stating that she was calling in relation to the hearing that was listed now and that the Applicant should call her back as a matter of urgency or join the Microsoft Teams link. At 11:15am, I commenced the conference and instructed my Associate to try calling the Applicant again. There was no answer and my Associate left a message similar to those previously left.

[23] The Respondent indicated that they pressed their application to have the matter dismissed and submitted that the Applicant has not provided any further material and, even if she had attended today, the hearing would be ineffective and inefficient given the lack of material filed to date.

Consideration

[24] The Applicant has been provided with ample opportunity to put on material in support of her application but has not done so. She has also failed to attend a conference in respect of her matter, as well as the scheduled hearing. It is true that she has made some contact with my Associate regarding this matter, however she has failed to provide any material of substance in support of her application and has subsequently ignored all attempts by my Chambers to contact her.

[25] The paucity of material provided by, and inaction of the Applicant, has prompted the Respondent to make an application for the matter to be dismissed pursuant to s.399A of the Act.

[26] The process undertaken has been accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox. 1 The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in her application being dismissed.

[27] I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed. Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733580>

 1   [2021] FWCFB 875 at [57].