Vanessa Mendes v C Restaurant

[2019] FWC 4941

[2019] FWC 4941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vanessa Mendes
v
C Restaurant
(U2019/2926)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 JULY 2019

Application for an unfair dismissal remedy.

[1] On 15 March 2019, Ms Vanessa Mendes 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).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Mendes said she was notified that her employment had been terminated by C Restaurant (ABN 72 764289 569) on 8 March 2019, and that the dismissal took effect on the same day. In her Form F2, Ms Mendes named Mr Adrien Santos as her representative.

[3] In its Form F3 – Employer response to application for an unfair dismissal remedy (Form F3) filed on 2 April 2019, it was confirmed that C Restaurant was the trading name for an entity with the legal name “Shoppenhangers Pty Ltd ATF JFO Unit Trust”. I am satisfied that this entity is the correct Respondent in this application.

[4] On 27 March 2019, the Commission sent a Notice of Listing scheduling the matter for conciliation. The matter was scheduled for a face to face conciliation on 18 April 2019, as Ms Mendes had requested the assistance of an interpreter.

[5] Ms Mendes sent the Commission correspondence by way of email on 2 April 2019, requesting for the conciliation to be adjourned on the basis that she “had to leave the country”. On 3 April 2019, the Commission responded to Ms Mendes by email, requesting more information to support her request such as a travel itinerary. Later in the afternoon on 3 April 2019, the Commission attempted to call Ms Mendes and Mr Santos in relation to the adjournment request but there was no answer and no opportunity to leave a voice message on either of their phone numbers.

[6] In the afternoon of 4 April 2019, the Commission sent correspondence to Ms Mendes’ nominated email address advising her request for an adjournment of the conciliation had been refused.

[7] Later the same day, Ms Mendes responded to the Commission’s previous request to provide more information supporting her adjournment request. Ms Mendes stated:

“My phone doesn't work in France, sorry for that.

I had to leave the country because the visa was declined. So now we are in France to make a new visa application. (We have to be outside Australia for a new visa application).

At the moment, we don't know when we can come back, hopeffuly [sic] will be soon.”

[8] On 8 April 2019, the Commission emailed Ms Mendes advising that the conciliation would still be proceeding on 18 April 2019 as per the initial listing. Ms Mendes was informed that if she was not able to attend the conciliation in person, she would need to advise the Commission of her best contact number, the names of any other attendees and their contact numbers for conciliation.

[9] On 13 April 2019, Ms Mendes emailed the Commission and advised that she and Mr Santos would attend the conciliation by telephone and provided two separate international phone numbers. Ms Mendes further instructed the Commission to call her and Mr Santos on the two separate numbers as they would not be together on the day of the conciliation.

[10] On 18 April 2019, the conciliation could not take place as neither Ms Mendes or Mr Santos were able to be contacted via the telephone numbers provided.

[11] On 22 April 2019, Ms Mendes sent an email to the Commission which stated:

“Thursday, April 18, we waited all day for your call for conciliatiin [sic] without result.

Was there a problem ? I sent you the phone numbers but you didn't anwser [sic].”

[12] On 26 April 2019, the Commission responded to the above email and advised that the Commission conciliator was unable to connect to Ms Mendes or Mr Santos on the international phone numbers she had provided on 18 April 2019. The Commission advised Ms Mendes to advise whether she wanted the conciliation to be rescheduled and if so, what dates she is not available.

[13] Ms Mendes replied to the Commission on 30 April 2019, advising “it was strange the phone numbers didn’t work, we was [sic] available only on the french numbers”. Ms Mendes further advised that she was returning in three weeks and requested the Commission to reschedule the conciliation from 20 May 2019.

[14] Subsequently on 3 May 2019, a Notice of Listing was sent to the parties by email, advising that conciliation was rescheduled for 20 May 2019.

[15] The conciliation on 20 May 2019 could not proceed as neither Ms Mendes or Mr Santos could be contacted via telephone, despite two calls to Ms Mendes and one call to Mr Santos, with voicemail messages left for each to return the calls.

[16] Following this, on the same day, the Commission sent correspondence to the parties advising that if the parties wished to proceed to a further conciliation, they were required to request this within two working days.

[17] As no response was received a letter dated 4 June 2019 was sent to the parties advising that the matter would proceed to arbitration.

[18] On 5 June 2019, the Commission issued a Notice of Listing scheduling the matter for an Arbitration Conference/Hearing from 29 to 31 July 2019. Directions were also issued requiring Ms Mendes to file an Outline of Argument, Statement(s) of Evidence and Document List by no later than noon on 24 June 2019. The Notice of Listing was sent to the nominated email addresses of both Ms Mendes and Mr Santos.

[19] On 18 June 2019, the Commission issued an amended Notice of Listing which rescheduled the Arbitration Conference/Hearing dates to 30 July to 1 August 2019. The directions were not amended.

[20] No material was received from Ms Mendes by noon on Monday, 24 June 2019.

[21] On 28 June 2019, the Commission attempted to telephone Ms Mendes and Mr Santos and a voicemail message was left on both occasions advising that Ms Mendes’ materials were overdue. An email was also sent to Ms Mendes and Mr Santos on 28 June 2019, which enquired about the status of Ms Mendes’ materials.

[22] On 1 July 2019, another email was sent to Ms Mendes and Mr Santos, warning them that if they did not contact the Commission by noon on 2 July 2019, Ms Mendes’ matter would be listed for a non-compliance hearing.

[23] On 2 July 2019, the Commission attempted to telephone each of Ms Mendes and Mr Santos. Voicemail messages were left on both attempts advising that the matter will be listed for a non-compliance hearing. An SMS was also sent to Ms Mendes, requesting her to call the Commission back.

[24] Later the same day the matter was listed for a non-compliance hearing on 5 July 2019 and a Notice of Listing was sent to the parties confirming the details. In this Notice of Listing, it was noted that the Commission would be contacting Ms Mendes and Mr Santos on the Australian telephone numbers nominated in the Form F2.

[25] In the early afternoon on 3 July 2019, the Commission attempted to call each of Ms Mendes and Mr Santos on the international phone numbers provided by Ms Mendes prior to conciliation. A voicemail message was left for Ms Mendes while the call to Mr Santos did not go through. Following these calls, the Commission issued another Notice of Listing for the non-compliance hearing on 5 July 2019, which noted that the Commission would contact Ms Mendes and Mr Santos on the international phone numbers provided.

[26] Later in the afternoon of 3 July 2019, the Commission sent Ms Mendes and Mr Santos email providing them the international phone number to contact the Commission from overseas and restated the details of the non-compliance hearing.

[27] The non-compliance hearing proceeded before me on 5 July 2019. Ms Mendes could not be contacted. Mr Santos also could not be contacted. The Respondent made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Mendes’ failure to comply with the directions of the Commission requiring her to file material. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[28] On 8 July 2019, correspondence was sent to Ms Mendes and Mr Santos via email advising them of the Respondent’s s.399A application. Ms Mendes was directed to file submissions and other documentary material in respect of the s.399A application by no later than close of business on 15 July 2019. The correspondence also noted that if the Commission did not receive a response, Ms Mendes’ application for relief from unfair dismissal would be dismissed. The Commission also issued a Notice of Listing cancelling the Arbitration Conference/Hearing on 30 July to 1 August 2019, which was sent to the parties on the same day.

[29] To date, Ms Mendes has not filed any material with the Commission.

[30] 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.

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

[32] As Ms Mendes did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[33] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing her application and sending a few emails during the conciliation process, Ms Mendes has failed to actively prosecute her case and has remained nearly impossible to make contact with and unresponsive to communication from the Commission. Ms Mendes has provided no explanation to the Commission for either her continued failure to comply with directions or her failure to attend the non-compliance hearing on 5 July 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Mendes’ application. This ends her unfair dismissal application.

[34] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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