Susitana Lemi Toomata v Carter & Spencer Pty Ltd

[2019] FWC 530

[2019] FWC 530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susitana Lemi Toomata
v
Carter & Spencer Pty Ltd
(U2018/12175)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 26 November 2018, Ms Susitana Lemi Toomata 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 Lemi Toomata said her employment had been terminated by Carter & Spencer Pty Ltd (C&S) on 23 November 2018 and that it took effect on the same day. Ms Lemi Toomata’s application was lodged by her representative, Australian Dismissal Services.

[2] A conciliation was held on 17 December 2018 but did not resolve. The matter was therefore scheduled for an Arbitration Conference/Hearing on 25-27 February 2019 and directions were sent to the parties on 18 December 2018, which required Ms Lemi Toomata to file an outline of submissions, any witness statements and other documentary material by no later than noon on 7 January 2019.

[3] On 19 December 2018, a Form F54 – Notice of Representative Ceasing to Act was received by the Commission from Australian Dismissal Services.

[4] As no material was received from Ms Lemi Toomata on 7 January 2019, the Commission attempted to contact her on the telephone number provided in her application. According to the Commission’s records, a male person answered the call and advised he was unable to attend to the call at the time.

[5] Following this, the Commission sent Ms Lemi Toomata an email seeking her advice as to when she intended on filing her material.

[6] On 8 January 2019, the Commission attempted to contact Ms Lemi Toomata on the telephone number provided in her application. The Commission’s records indicate that a male individual answered the call, who then provided the Commission an alternative contact number for Ms Lemi Toomata. A call to the alternative contact number was also attempted but Ms Lemi Toomata could not be reached, so a voicemail message was left advising that her material was overdue and that if she did not make contact, the matter would be listed for a non-compliance hearing.

[7] On 9 January 2019, two Notices of Listing were sent to the parties scheduling the matter for a non-compliance hearing for 11 January 2019. The first Notice of Listing notified the parties that the non-compliance hearing would commence at 8:30am AEST and the second Notice of Listing subsequently amended the commencement time to 1:00pm AEST. A telephone call to Ms Lemi Toomata was attempted each time a Notice of Listing was issued and voicemail messages were left advising her of the non-compliance hearing.

[8] The non-compliance hearing proceeded before Commissioner Wilson on 11 January 2019. Ms Lemi Toomata could not be contacted. C&S made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Lemi Toomata’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted C&S’s oral application.

[9] Following the non-compliance hearing, correspondence was sent to Ms Lemi Toomata’s nominated email and postal addresses advising her of C&S’s s.399A application. The postal correspondence was sent via express post. Ms Lemi Toomata was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00pm on 18 January 2019. The correspondence also noted that if the Commission did not receive a response, Ms Lemi Toomata’s application for relief from unfair dismissal would likely be dismissed. A review of the express post tracking ID indicated that the correspondence was delivered to Ms Lemi Toomata’s nominated postal address on 15 January 2019.

[10] Also following the non-compliance hearing on 11 January 2019, a Notice of Listing was sent to the parties vacating the directions and cancelling the Arbitration Conference/Hearing.

[11] To date, Ms Lemi Toomata has not filed any material with the Commission.

[12] 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.

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

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

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Lemi Toomata has failed to respond to the numerous attempts made by the Commission to contact her. Apart from initially filing her application and attending the conciliation, Ms Lemi Toomata has shown no 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 Lemi Toomata’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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