Tyjana Maree Chatters v The Grass Valley Tavern

[2018] FWC 2539

[2018] FWC 2539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tyjana Maree Chatters

v

The Grass Valley Tavern

(U2018/576)

Deputy President Clancy MELBOURNE, 8 MAY 2018

Application for an unfair dismissal remedy – Application dismissed.

1. On 19 January 2018, Miss Tyjana Maree Chatters 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). Miss Chatters said that her employment had been terminated by The Grass Valley Tavern (the Tavern) on 28 December 2017, with the dismissal taking effect on 1 January 2018.

1. On 5 February 2018, the Tavern filed its Form F3 – Employers response to unfair dismissal application in which it raised a jurisdictional objection to Miss Chatters’ application. The Tavern objected to the application on the basis that Miss Chatters had not been dismissed.

1. The matter was listed for conciliation on 19 February 2018, however the conciliation could not take place as Miss Chatters could not be contacted.

1. On 15 March 2018, directions were issued by the Commission. The Tavern was directed to file material in support of its jurisdictional objection by no later than noon on 3 April 2018. Miss Chatters was directed to file material in support of her application by no later than noon on 10 April 2018. The Tavern was directed to file its final material by no later than noon on 17 April 2018.

1. On 17 March and 21 March 2018, the Tavern filed submissions relating to its jurisdictional objection that Miss Chatters was not dismissed. Miss Chatters failed to file her material by noon on 10 April 2018.

1. On 10 April and 11 April 2018, the Commission attempted to contact Miss Chatters by telephone regarding her submissions. The calls could not be completed and the Commission was unable to leave a voicemail message.

1. On 11 April 2018, subsequent email correspondence was sent to Miss Chatters stating that her submissions were overdue. This email advised that if the Commission did not receive a response by noon on 12 April 2018, the matter would be listed for a non-compliance hearing on 13 April 2018.

1. On 12 April 2018, the Commission received email correspondence from Miss Chatters requesting an extension to 1 May 2018 to file her material as she had been moving house and had had health complications. An extension was granted and amended directions were issued by the Commission. Miss Chatters was directed to file material in support of her application by no later than noon on 17 April 2018. The Tavern was directed to file its final material by no later than noon on 24 April 2018. Miss Chatters failed to file any material by noon on 17 April 2018.

1. On 17 April 2018, the Commission attempted to contact Miss Chatters by telephone regarding her submissions. The call could not be completed and the Commission was unable to leave a voicemail message.

1. On 18 April 2018, the Commission sent email correspondence to Miss Chatters stating that her submissions were overdue. This email advised that if the Commission did not receive a response by noon on 19 April 2018, the matter would be listed for a non-compliance hearing on 20 April 2018. The Commission did not receive a response.

1. On 19 April 2018, the Commission attempted to contact Miss Chatters by telephone to advise her that her matter would be listed for a non-compliance hearing. Again, the call could not be completed and the Commission was unable to leave a voicemail message. On the same day, a Notice of Listing was sent to the parties by email confirming a non-compliance hearing was proceeding on 20 April 2018. Miss Chatters was also sent an SMS message confirming the date and time of the non-compliance hearing.

1. On 20 April 2018, a non-compliance hearing proceeded before Commissioner Bissett. Miss Chatters could not be contacted for the hearing. The Tavern made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Miss Chatters’ failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted The Tavern’s oral application.

1. Following the non-compliance hearing, correspondence was sent to Miss Chatters’ nominated email and postal addresses advising her of the Tavern’s 399A application. Miss Chatters was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 27 April 2018. This correspondence stated that if the Commission did not receive a response, Miss Chatters’ application for relief from unfair dismissal would be dismissed.

1. To date, Miss Chatters has not filed any material with the Commission.

1. 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.

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

1. As Miss Chatters did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Miss Chatters has failed to respond to numerous attempts made by the Commission to contact her. Apart from initially filing her application and seeking an extension to file her material, Miss Chatters has shown no willingness to prosecute her case and has provided no explanation to the Commission for either her failure to comply with 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 Miss Chatters’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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