Trinda Toohey v Fronditha Care

[2022] FWC 28

[2022] FWC 28

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Trinda Toohey
v

Fronditha Care

(U2021/9208)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 10 JANUARY 2022

Application for an unfair dismissal remedy

1. This decision relates to an unfair dismissal application by Ms Trinda Toohey pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Fronditha Care.

1. The matter was listed for a directions hearing by telephone on 16 November 2021. On 15 November 2021 the applicant emailed my associate requesting that the directions hearing be postponed due to a family crisis. The directions hearing was rescheduled to 19 November 2021. 

1. The respondent attended the directions hearing by telephone on 19 November 2021. There was no appearance by or on behalf of the applicant. The respondent informed the Commission that it wished to make an application under s 399A of the Fair Work Act to dismiss Ms Toohey’s unfair dismissal application on the basis that she unreasonably failed to attend the directions hearing. The following directions were made:

“Deputy President Saunders makes the following directions:

1.   By 4pm on 23 November 2021, the respondent must file and serve its application under s 399A of the Fair Work Act to dismiss Ms Toohey’s unfair dismissal application on the basis that she unreasonably failed to attend the directions hearing at midday today.

2. The respondent’s application under s 399A of the Fair Work Act to dismiss Ms Toohey’s unfair dismissal application is listed for hearing, by telephone, at 9am on Tuesday, 30 November 2021.”

1. The respondent filed and served its application in accordance with the directions and the respondent’s application was heard on 30 November 2021. The applicant and the respondent attended the hearing. The respondent’s application was dismissed and an email in following terms was sent from my chambers that same day:

“The Deputy President issues the following directions:

1.   By 4pm on 21 December 2021, the applicant must file and serve the witness statements, documents and submissions on which she wishes to rely in support of her application.

2.   By 4pm on 18 January 2022, the respondent must file and serve the witness statements, documents and submissions on which it wishes to rely.

3.   By 4pm on 25 January 2022, the applicant must file and serve any witness statements, documents and/or submissions in reply to the material filed by the respondent.

4.   The matter is listed for hearing, by Microsoft Teams video conference, at 10am 7 February 2022 (NSW time). The details for joining the video conference will be provided in the Notice of Listing.

5.   By 4pm on 4 February 2022, each party must notify the other party and the Commission, in writing, as to which witnesses they intend to cross examine at the hearing.

6.   At 9am on 4 February 2022 (NSW time), there will be a trial run of the video conferencing facilities. The details for joining the video conference will be provided in the Notice of Listing.

7.   If a party wishes to rely on a witness statement which has been filed and served, the party must ensure that the maker of the witness statement attends the hearing, subject to a different ruling by the Deputy President.

8.   Any witness who is called to give evidence at the hearing by video conference must not have any person other than their representative present in the same room as them, and must not be in communication with any person by electronic or other means (save for the video conference connection), when they give evidence by video conference.

9.   Any witness who is not a party to the proceedings will not be permitted to be present or observe the hearing until they have given evidence.

10.  Each witness must have a hard copy of their witness statement(s), including annexures thereto, with them when they are called to give evidence at the hearing.

11.  The affirmation will be administered to each witness who gives evidence in the proceedings.

12.  In the event that a party wishes to show a witness a document in cross examination (other than a document annexed to the witness’s witness statement filed in the proceedings), that party must email a copy of that document to the other party to the proceedings (who must provide it to their witness), and the Associate to Deputy President Saunders by 4pm on the business day prior to the hearing.

13.  By 4pm on the business day prior to the hearing, each party must file and serve a list of the authorities they intend to read from, or take the Commission to, in final submissions.

14.  An audio recording of the hearing will be made by the Fair Work Commission.

15.  Each party has liberty to apply for the matter to be heard in person.

Information about preparing for a hearing can be found on the FWC website here (including templates for witness statements and submissions).”

1. The applicant did not file with the Commission any material in accordance with the first direction above. On 21 December 2021 an email in the following terms was sent from my Chambers:

“Dear Ms Toohey

I refer to the directions issued in this matter on 30 November 2021 (below).

In those directions you were directed to file with the Fair Work Commission, and serve on the Respondent, witness statements, documents and submissions you intend to rely on in support of your application in this matter by no later than 4pm on 21 December 2021. No such witness statements, documents and submissions have been filed.

The Deputy President extends the time by which you must file and serve on the Respondent, witness statements, documents and submissions you intend to rely on in support of your application in this matter to no later than 4pm on 23 December 2021.

If nothing is filed in support of your application by that time, your unfair dismissal application may be dismissed without further notice to you.

If you wish to discontinue your application, you may do so by stating, in an email in reply to this email, that you wish to discontinue your application against Fronditha Care.

I note that if you do not discontinue your application and the Commission dismisses your application because you have not filed any material in support of your application, a publicly available decision must be published on the Fair Work Commission website. The decision will indicate that you have failed to comply with directions issued by the Commission and that your unfair dismissal application was consequentially dismissed.”

1. There was no response to this correspondence, nor has any material been filed by the applicant to comply with the directions.

1. On 6 January 2022 an email in the following terms was sent from my Chambers:

“Dear parties

If we do not hear from Ms Toohey by 9am on Monday, 10 January 2022, Deputy President Saunders will dismiss Ms Toohey’s unfair dismissal application without further prior notice to the parties.”

There was no response to this correspondence.

1. In light of the applicant’s failure to comply with the directions made on 30 November 2021, as amended on 21 December 2021, together with the absence of any communication from the applicant since 30 November 2021, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss the applicant’s unfair dismissal application against the respondent in these proceedings. The application is therefore dismissed, the hearing scheduled to take place on 7 February 2022 is vacated, and the directions made on 30 November 2021 are vacated.

DEPUTY PRESIDENT

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