Tia Brown v Inverlilly Pty Ltd
[2023] FWC 153
•19 JANUARY 2023
| [2023] FWC 153 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tia Brown
v
Inverlilly Pty Ltd
(U2022/9656)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 19 JANUARY 2023 |
Application under s 399A – failure to comply with directions – application dismissed
The following is an edited version of a decision delivered ex tempore this morning, to which I have added a brief introduction. Inverlilly Pty Ltd (company) has made an application under s 399A of the Fair Work Act 2009 (Act) which asks the Commission to dismiss an unfair dismissal application brought against it by Ms Tia Brown.
On 9 December 2022, I issued directions which required Ms Brown to file and serve, by 5 January 2023, an outline of argument, statements of evidence, and a document list in support of her application. Ms Brown failed to comply with my directions. On 9 January 2023, my associate wrote to Ms Brown, reminding her that she had not filed her materials. No response was received from Ms Brown.
On 13 January 2023, I listed Ms Brown’s application for telephone mention at 2.00pm on 16 January 2023. I noted in my correspondence to the parties that Ms Brown would be expected to explain her failure to comply with my directions, and to outline the case that she intended to put against the company at the hearing of her application on 19 January 2023. On 16 January 2023 my associate telephoned Ms Brown three times and left messages, in an effort to connect her to the telephone mention on 16 January 2023, but she could not be contacted.
At the telephone mention, the company made an oral application under s 399A of the Act for the Commission to dismiss Ms Brown’s unfair dismissal application, on the basis that she had unreasonably failed to comply with the Commission’s directions of 9 December 2022, and had unreasonably failed to attend conciliation conferences at the Commission on 2 and 24 November 2022, as well as the telephone mention on 16 January 2023. I waived the requirement of the Fair Work Commission Rules (Rules) that the s 399A application be lodged in a form F1 document, and accepted the company’s oral application. I advised the company that my chambers would make Ms Brown aware of the application under s 399A and give her an opportunity to respond to it.
On the afternoon of 16 January 2023, my associate wrote to Ms Brown on my behalf, advising her that at the mention the company had made an oral application under s 399A for the Commission to dismiss her unfair dismissal application, on the grounds that she had unreasonably failed to comply with the Commission’s directions, had unreasonably failed to attend the conciliation conferences on 2 and 24 November 2022, and had unreasonably failed to attend the mention on 16 January 2023. The correspondence noted that I had waived the requirement of the Rules that the company lodge a form F1 document. Ms Brown was directed to provide a brief written response to the application by 5.00pm on 18 January 2023. I advised the parties that I would hear the s 399A application concurrently with Ms Brown’s unfair dismissal application on 19 January 2023. Ms Brown did not provide any written response.
Ms Brown did not attend the hearing at 10.00am on 19 January 2023. My associate telephoned Ms Brown, and connected her to the hearing. Ms Brown stated that she had been told that her matter was not proceeding. I told Ms Brown that I had in front of me a suite of correspondence from the Commission to her concerning her application, and that the hearing of her application had commenced. Ms Brown disconnected from the call.
Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant has unreasonably failed to attend a hearing or conference held by the Commission in relation to the application (s 399A(1)(a)), or has unreasonably failed to comply with a direction or order of the Commission relating to the application (s 399A(1)(b)). It is clear that Ms Brown failed to comply with my directions of 9 December 2022 and failed to attend the mention in relation to her application on 16 January 2023. The question is whether these failures were unreasonable, and if so whether I should then exercise my discretion to dismiss her unfair dismissal application under s 399A.
Ms Brown has not offered any explanation for her failure to comply with my directions, or her failure to attend the mention on 16 January 2023, other than to assert that she was not aware that her matter was proceeding. Instead of explaining the basis of this assertion, Mr Brown disconnected from today’s hearing. I do not accept that Ms Brown was unaware that her matter was proceeding. I conclude that there was no good reason for her failure to comply with directions and to attend the mention on 16 January 2023, and that they were unreasonable.
My discretion to dismiss Ms Brown’s unfair dismissal application under s 399A has been enlivened, and I consider it appropriate to exercise the discretion. The Commission issues directions in unfair dismissal applications in order to facilitate a fair and orderly determination of those matters. Parties are required to comply with directions. Ms Brown has not offered any explanation for her failure to do so. She has shown no interest in her case. Because she did not discontinue her application, the respondent was put to the time and expense of responding to it. It has prepared submissions and attended proceedings. She has not. Her behaviour in this regard has been unacceptable. The company’s application under s 399A is granted. Ms Brown’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Hearing details:
2023
Melbourne
19 January
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