Vanessa Graydon v EC Credit Control (Aust) Pty Ltd
[2024] FWC 892
•8 APRIL 2024
| [2024] FWC 892 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vanessa Graydon
v
EC Credit Control (Aust) Pty Ltd
(U2024/868)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 8 APRIL 2024 |
Application for an unfair dismissal remedy – failure to comply with Directions – failure to attend mention/directions hearing – applicant’s conduct wholly unexplained and unsatisfactory – Applicant a drain on the time and resources of the Respondent and the Commission – unfair dismissal application dismissed for want of prosecution on Commission’s own initiative
Overview
On 25 January 2024, Ms Vanessa Graydon (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Respondent to the Application is the EC Credit Control (Aust) Pty Ltd.
Direction [3] of the initial Directions issued on 1 March 2024 (Initial Directions) reads:
“By 4.00pm AEDT on Friday, 29 March 2024, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the Respondent’s jurisdictional [not an employee, and no dismissal] objection.”
The Applicant did not comply with Direction [3] of the Initial Directions.
On 2 April 2024, the matter was listed for a mention/directions hearing by telephone at 11:00am AEDT on 5 April 2024 to deal with the Applicant’s non-compliance. The Applicant failed to attend. Attempts by Chambers to contact the Applicant by telephone at this time were unsuccessful (i.e. the Applicant’s phone rang out and was not answered).
On 5 April 2024, at 11:42am AEDT, the following email (Show Cause Email) was sent to the Applicant:
“Dear Ms Graydon
Re: U2024/868 - Vanessa Graydon v EC Credit Control (Aust) Pty Ltd - Show Cause as to why the Applicant’s case ought not be dismissed
I refer to the above matter, and write on behalf of the Deputy President.
Background
On 1 March 2024, the Fair Work Commission issued Directions in this matter. Order [3] of these Directions reads:
“By 4.00pm AEDT on Friday, 29 March 2024, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the Respondent’s jurisdictional objection.”
To date, Chambers has not received any materials from (or otherwise filed) by you in compliance with Order [3]. Nor have you made any contact with Chambers about any purported reasons for your non-compliance (including on-going non-compliance).
On 2 April 2024, you were sent an email attaching a Notice of Listing for a telephone mention/directions hearing today at 11:00pm AEDT. You did not confirm your attendance prior to today’s hearing, and you did not attend at today’s hearing. When you were telephoned by Chambers at the commencement of the hearing today to ascertain your attendance, your phone went unanswered. You have equally made no further contact with Chambers post the hearing today. It is noted that the email and telephone number used to communicate with you, and to attempt to contact you, are the same as provided by you to the Commission.
Further Orders
In view of the foregoing, the Deputy President makes the following Orders:
[A] By no later than 4:00pm today (5/4/24), the Applicant must file with the Commission (via reply email to Chambers), and serve upon the Respondent, written submissions regarding her non-compliance with Direction [3], and her non-attendance (including inability to be contactable) at the hearing today, including the reasons for same, and enclosing any relevant documentation in support of such reasons.
[B] If the Applicant does not comply with Order [B] above, or if the Deputy President is not satisfied with the content of the Applicant’s written submissions or other materials or documents filed in support, this will result in the proceedings being immediately dismissed without any further notice to the Applicant. An order to that effect (dismissing the Applicant’s case) will be thereafter published.
Yours faithfully
[Associate]”
The Applicant did not comply with Order/Direction [A] in the Show Cause Email. However, the Applicant subsequently provided the following response on Saturday, 6 April 2024:
“Good morning,
I have only just received this, and I had the date of hearing listed for two weeks time? Not yesterday.
I have not received correspondence requesting that I submit further documents, I received an email stating that the respondents (sic) correspondence was required, as I am the applicant I did (sic) believe this pertained to myself.
Regards
Vanessa”
Legislative Provisions
Section 587 of the Act reads:
“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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:
“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”
Consideration
The evidence before me from the Commission’s case file identifies that the Applicant provided her contact mobile telephone number and contact email address on her Form F2 Application when it was originally filed with the Commission. The Applicant has not changed or otherwise updated her contact details with the Commission.
The evidence before me from the Commission’s case file also identifies that the Applicant was sent via email (to her nominated contact email address) the Initial Directions, the listing for the mention/directions hearing on 5 April 2024 (sent to her on 2 April 2024), and the Show Cause email of 5 April 2024. Indeed, the Applicant’s reply email on 6 April 2024 was sent by her from the very same email address nominated by her, and to which all other directions and listing information have been sent out to her. There are no records of any bounce back emails received from the Applicant.
Having regard to the materials before me, I make the following findings:
a) the Applicant was sent via email (to her nominated email address) the Initial Directions (sent to her on 1 March 2024), the listing for the mention/directions hearing on 5 April 2024 (sent to her on 2 April 2024), and the Show Cause email (sent to her on 5 April 2024);
b) the Applicant has made no attempt to comply with Direction [3] of the Initial Directions, and has not explained (in any way) her non-compliance;
c) the Applicant failed to attend the mention/directions hearing on 5 April 2024, and did not make any prior contact with the Commission regarding her inability to attend;
d) the Applicant was unable to be contacted on her nominated mobile telephone number when contacted by Chambers on 5 April 2024 to ascertain her whereabouts for the 11:00am mention/directions hearing that day; and
e) the Applicant’s email of 6 April 2024, asserting that she did not, or has not, received the Initial Directions (sent to her on 1 March 2024) and the listing for the mention/directions hearing on 5 April 2024 (sent to her on 2 April 2024) is contrary to the evidence that such information was in fact emailed to her. Indeed, the Applicant asserts that she received a Notice of Listing for the hearing on 26 April 2024, in circumstances where the Initial Directions were sent to the Applicant along with that Notice of Listing on 1 March 2024. Further, the Applicant also makes mention (in her 6 April 2024 email) of receiving (i.e. being copied into) an email previously sent to the Respondent.
In view of my findings in the foregoing paragraph setting out the Applicant’s repeated instances of non-compliance, I have decided to dismiss her unfair dismissal application (and thus bring an end to these proceedings). I am simply unable to accept that the Applicant did not receive the emails and other notifications that she asserts she has not received, or that she was somehow under a misunderstanding, unclear or otherwise confused about the contents of the emails she did in fact receive from the Commission (including the Show Cause email sent to the Applicant on 5 April 2024 at 11:42am).
The short point is that the Applicant made an unfair dismissal claim, and the onus has at all times been upon her (in making this claim) to be contactable and responsive (in a timely manner) to communications from the Commission (via email or telephone). The Applicant is also, in making her claim, required to comply with directions issued, and personally attend upon listings and hearings. The Applicant has dismally failed on all counts, and her conduct has been wholly unexplained and unsatisfactory, leading to a drain on the time and resources of the Respondent and the Commission.
Pursuant to s.587(3)(a) of the Act, the Unfair Dismissal Application filed by the Applicant is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision. These proceedings are now ended.
DEPUTY PRESIDENT
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