Tamara Atia v Programmed Health Professionals Pty Ltd
[2024] FWC 3042
•4 NOVEMBER 2024
| [2024] FWC 3042 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tamara Atia
v
Programmed Health Professionals Pty Ltd
(U2024/8198)
| COMMISSIONER ALLISON | MELBOURNE, 4 NOVEMBER 2024 |
Application for an unfair dismissal remedy – applicant failed to engage in the process – want of prosecution – application dismissed.
On 15 July 2024, Ms Tamara Atia made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, against Programmed Health Professionals Pty Ltd (the Employer). The Employer disputes the application.
For the reasons given below, I have determined to dismiss Ms Atia’s unfair dismissal claim for want of prosecution, pursuant to s.587(1) of the Act.
Background
Ms Atia made an application for unfair dismissal remedy on 15 July 2024, using the Commission’s online lodgement system. In her Form F2, Ms Atia provided a mobile number and an email address, both of which have been used by the Commission through the conduct of this matter.
The application was first listed for conciliation before a staff conciliator on Thursday 15 August 2024. The matter was not resolved at the staff conciliation.
Ms Atia’s application was allocated to my Chambers on 16 August 2024. On the same day, Chambers issued a Notice of Listing to the parties for a Case Management Conference (CMC) on 28 August 2024. On 20 August 2024, the Employer requested that the CMC be adjourned until 30 August 2024. On 22 August 2024, my Chambers sent an email to the parties advising that the request for an adjournment had been granted.
On 29 August 2024, at approximately 2:57PM, my Chambers received a voicemail from the Applicant requesting a call back on the phone number listed in her application in relation to the CMC listed for 30 August 2024.
Ms Atia and the Respondent attended the CMC on 30 August 2024. At the CMC I discussed dates for the programming of the application, including the filing of submissions, a Member Assisted Conciliation before another Commission member (MAC) and a Determinative Conference/Hearing. Following the CMC my Chambers issued a Notice of Listing and Directions by email to the parties. The parties were directed to attend a MAC. I also directed the parties that if the matter failed to resolve during the MAC, they would be required to attend a Determinative Conference/Hearing before me, listed at 10:00AM on Monday 14 October 2024.
At approximately 11:39AM the same day, my Chambers sent a further email to the parties advising that Commissioner Tran would be conducting the MAC:
“Further to my email below, Commissioner Allison now directs the parties to attend a further Member Assisted Conciliation (MAC) before Commissioner Tran. This MAC will take place after both parties have had an opportunity to file their submissions.”
On 11 September 2024, Commissioner Tran’s Chambers issued a Notice of Listing for the MAC. Both the covering email and Notice of Listing advised that the MAC was listed for 2:30PM Friday 4 October 2024. The Notice of Listing also directed the parties to provide appearances ahead of the MAC:
“You must send an email to [email protected] providing the names and contact numbers of those attending the conference by no later than 12:00pm Thursday, 3 October 2024.”
(original emphasis)
On 13 September 2024, Ms Atia provided her submissions and evidence in support of her contention that her dismissal was unfair. The Respondent provided its submissions and evidence in support of its contention that the Applicant’s dismissal was not unfair on 30 September 2024.
The Applicant failed to provide her appearances ahead of the MAC.
On 4 October 2024, the Applicant failed to appear at the MAC. At the time of the MAC the associate to Commissioner Tran attempted to contact the Applicant but was unable to establish contact.
On 7 October 2024, the associate to Commissioner Tran attempted to contact Ms Atia via her mobile number to discuss her failure to appear at the MAC. The Applicant did not answer the phone and a message was left requesting that she return the call.
At approximately 5:14PM on 9 October 2024, my Chambers sent an email to Ms Atia noting her non-compliance, which relevantly stated:
“Dear Ms Atia,
RE: U2024/8198 - Tamara Atia v Programmed Health Professionals Pty Ltd
Your unfair dismissal application is currently listed for Hearing, in person, at 10:00AM on Monday 14 October 2024.
…
At this stage, the Hearing is still scheduled to proceed. As the Applicant, you are required and expected to attend the hearing. Please note that failure to attend proceedings before a Member of the Commission is a serious matter and may result in your application being dismissed with a publicly accessible written decision.
Action Required – Urgent:
If you intend to pursue your unfair dismissal application, please confirm that you will attend the hearing as soon as possible.
If you intend to discontinue your application, please confirm this by return email as soon as possible.”
(original emphasis)
On 14 October 2024, before the Determinative Conference/Hearing listed for 10:00AM, my Chambers made two phone calls to Ms Atia’s mobile number. Neither of the calls were answered and voice messages were left asking the Applicant to confirm by return call or email whether she intended to proceed with the hearing. The Applicant was also made aware that her application was at risk of being dismissed in a public decision if she did not attend.
Later the same day, the Applicant failed to appear at the Determinative Conference/Hearing. At approximately 10:04AM, my Chambers attempted to contact Ms Atia on her mobile number but the call was not answered. I called the matter on at 10:14AM and stated on the record that the Applicant would be sent further correspondence directing her to explain why she had not attended the Determinative Conference/Hearing and why her application should not be dismissed.
Those further directions were issued from my Chambers at approximately 11:57AM that day, relevantly stating as follows:
“Dear Ms Atia,
RE: U2024/8198 - Tamara Atia v Programmed Health Professionals Pty Ltd
Your unfair dismissal application was listed for Hearing, in person, at 10:00am today. You did not attend the Hearing. I tried to contact you on your mobile phone three times this morning and was unable to reach you.
You also did not attend the Member Assisted Conciliation before Commissioner Tran on 4 October 2024.
Failure to attend proceedings before a Member of the Commission is a serious matter. Commissioner Allison is now considering whether your application should be dismissed for want of prosecution.
If the Commissioner dismisses your application, her reasons for doing so will be published in a publicly accessible written decision.
URGENT Action Required:
Commissioner Allison directs you to file with the Commission and serve on the Respondent submissions addressing why you did not attend the Hearing today, and why the Commission should not dismiss your application. You should also provide any evidence, including documentary evidence. For example, if you are or have been unwell, the Commission requires a medical certificate. This material is required by no later than 5:00pm tomorrow, Tuesday 15 October 2024.
If you file material by the due date the Commission will consider your submissions and may deal with the application on the papers or list the matter for a brief hearing.
If you don’t provide your reasons by 5:00pm, Tuesday 15 October 2024, your application may be dismissed without further notice…
(original emphasis)
On 17 October 2024, my Chambers issued a final warning by text message to the Applicant’s mobile number:
“Your matter U2024/8198 is at risk of being dismissed for non-compliance with Directions. Please contact Chambers urgently.”
To date, Ms Atia has not provided any further response to the Commission.
Relevant Legislation and Case Law
Section 587 of the Act sets out the basis upon which the FWC may dismiss an application:
“587 Dismissing applications
(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note:For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
It is well established that the three specific grounds for dismissal of an application under s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative.[1] Dismissal of an application “for want of prosecution” is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.[2]
In Raschilla v Ausino West Pty Ltd[3] (Ausino) the Full Bench emphasised that the Commission’s powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an applicant’s right to have their substantive application heard and determined by the Commission.
Consideration – Should Ms Atia’s application be dismissed?
The Commission used the email address and phone numbers provided by Ms Atia in her Form F2 to communicate with her regarding the requirements for the progression of her unfair dismissal remedy application. It is apparent that Ms Atia has received communication from the Commission by email because she appeared at the Staff Conciliation and CMC. She has also corresponded via email to provide her evidence and submissions. Furthermore, it is reasonably apparent that Ms Atia is contactable on the phone number provided as she contacted Chambers by telephone to discuss the CMC and requested that she be called back on that same phone number.
Ms Atia has been unresponsive to attempts to contact her by email or telephone. She has not complied with my directions dated 30 August 2024 to attend a MAC. She has also failed to attend the Determinative Conference/Hearing. Ms Atia made no attempt to seek an adjournment for either of these proceedings. Nor has she complied with my directions of 14 October 2024 to submit material providing reasons for her absence or for why the Commission should not dismiss her application. The phone calls made to her provided numbers have gone unanswered.
Considering the events outlined above, I am satisfied that despite being properly advised of the various opportunities to advance her case, Ms Atia has failed to take sufficient actions to engage with the Commission following the conclusion of the CMC and the provision of her submissions on 13 September 2024. I have provided Ms Atia multiple, reasonable opportunities and have expressly put her on notice that a failure to engage with the Commission by the due date would lead to the dismissal of the application without further notice. The Commission must also take account of the interests of the Respondent in its case management of the application.
As noted above, s.587(1) does not limit when the Commission may dismiss an application. Ms Atia has, in effect, abandoned her application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter. I am satisfied that I should exercise my discretion to dismiss Ms Atia’s application.
Ms Atia’s application under s.394 is therefore dismissed.
COMMISSIONER
[1] Bosworth v Coles Supermarket Beechboro[2022] FWCFB 153, [48].
[2] Ibid.
[3] [2017] FWCFB 5952.
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