Susan Franke v Vivopower Pty Ltd

[2019] FWC 1690

[2019] FWC 1690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Franke
v
Vivopower Pty Ltd
(U2018/13093)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 18 December 2018, Ms Susan Franke made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Franke said she was notified that her employment had been terminated by Vivopower Pty Ltd (Vivopower) on 5 November 2018 and that the dismissal took effect on 5 December 2018.

[2] Vivopower filed its response to Ms Franke’s application on 10 January 2019, which indicated that it objected to her application on the basis that the dismissal was a case of genuine redundancy and that it was a small business employer that complied with the Small Business Fair Dismissal Code.

[3] Despite its jurisdictional objections, Vivopower agreed to participate in the conciliation scheduled on 25 January 2019. The matter did not resolve and a Notice of Listing was sent to the parties on 29 January 2019 scheduling the matter for a Jurisdiction (Genuine Redundancy and Small Business Fair Dismissal Code) and Arbitration Conference/Hearing on 3-5 April 2019. Directions were also issued, which required Vivopower to file its material addressing the jurisdictional objections by no later than noon on 18 February 2019; Ms Franke to file her material in reply to the jurisdictional objections and in support of her application by no later than noon on 25 February 2019; and Vivopower to file any reply material by no later than noon on 5 March 2019. This Notice of Listing and the Directions were sent to Ms Franke’s nominated email and postal addresses.

[4] Vivopower filed its material on 18 February 2019. No material was received from Ms Franke by 25 February 2019.

[5] On 26 February 2019, the Commission attempted to telephone Ms Franke on two occasions but she was unable to be reached. A voicemail message seeking her return call was left on both attempts. Following the second attempt, the Commission emailed correspondence to Ms Franke warning that if she did not file her material or request an extension to file her material by noon the next day, her matter would be listed for a non-compliance hearing. The correspondence further noted that Ms Franke’s application may be dismissed as a result of the non-compliance hearing.

[6] As no response was received from Ms Franke, a Notice of Listing was sent to the parties on the morning of 28 February 2019, scheduling the matter for a non-compliance hearing on 1 March 2019. In the case of Ms Franke, it was sent to both her nominated email address and nominated postal address.

[7] The non-compliance hearing proceeded before me on 1 March 2019. Ms Franke could not be contacted. Vivopower made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Franke’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Vivopower’s oral application.

[8] Following the non-compliance hearing, correspondence was sent to Ms Franke’s nominated email and postal addresses advising her of Vivopower’s s.399A application. The postal correspondence was sent via express post. Ms Franke was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 8 March 2019. The correspondence also noted that if the Commission did not receive a response, Ms Franke’s application for relief from unfair dismissal may be dismissed. A review of the express post tracking ID revealed that the correspondence was delivered to Ms Franke’s nominated postal address on 6 March 2019.

[9] On 12 March 2019, a Notice of Listing was sent to the parties cancelling the Jurisdiction and Arbitration Conference/Hearing scheduled for 3-5 April 2019.

[10] To date, Ms Franke has not filed any material with the Commission.

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

“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.

...

(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.”

[12] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[13] As Ms Franke did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Franke has failed to respond to the numerous attempts made by the Commission to contact her since the conciliation on 25 January 2019. Apart from initially filing her application and attending the conciliation, Ms Franke has otherwise not exhibited a willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with the Commission’s directions or her failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Franke’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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