Anna Elliot v Silver Lake (Deflector) Pty Ltd [2023] FWC 809

1 Fair Work Act 2009 s.394—Unfair dismissal Anna Elliot v Silver Lake (Deflector) Pty Ltd (U2023/569) DEPUTY PRESIDENT BEAUMONT PERTH, 12 APRIL 2023 Application for an unfair dismissal remedy [1] On 23 January 2023, Ms Anna Elliot (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that she had been unfairly dismissed by Silver Lake (Deflector) Pty Ltd (the Respondent). For the reasons that follow, I have decided to dismiss the Applicant’s application under s 399A(1)(a) and (b) of the Act. [2] On 1 March 2023, the matter was allocated to Chambers and directions were issued to the parties including a question on whether the parties consented to a member assisted conciliation conference (Conference). The Applicant, through her representative, indicated her willingness to participate in the Conference. The Conference was listed for Tuesday, 28 March 2023, and parties were notified by email dated Friday, 10 March 2023 and a notice of listing issued on Monday, 13 March 2023. [3] Directions for the substantive matter issued on Friday, 10 March 2023, with the Applicant required to file her materials by 1600hrs (AWST) on Thursday, 30 March 2023 (First Directions). [4] By email dated Wednesday, 22 March 2023, the parties were notified that the listing for the hearing had moved from Monday, 24 April 2023 to Wednesday, 26 April 2023. Parties were further informed in that same email that the directions of 10 March 2023 had not been amended and that the Conference was to proceed as planned on Tuesday, 28 March 2023. [5] On Friday, 24 March 2023, the Applicant’s representative provided the Applicant’s contact information for the Conference. However, come the date of the Conference on Tuesday, 28 March 2023, the Applicant was unable to be contacted by the Commission and her representative. In the afternoon of 28 March 2023, an email was sent to parties noting the Applicant’s failure to attend the Conference and issuing directions that the Applicant file submissions explaining why she did not attend the Conference by 1600hrs (AWST), Wednesday, 29 March 2023 (Second Directions). Parties were informed that the substantive directions remained in place. [2023] FWC 809 DECISION -- 1 of 3 -- [2023] FWC 809 2 [6] On Wednesday, 29 March 2023, the Applicant’s representative filed a Form F54 notifying the Commission of the cessation of representation. [7] On Thursday, 30 March 2023, Chambers issued directions regarding the potential dismissal of the Applicant’s application under s 587 of the Act (Third Directions), as the Applicant had failed to file any materials in accordance with the Second Directions. The Applicant was directed to file materials informing the Commission why her application should not be dismissed, by 1600hrs (AWST), Monday, 3 April 2023. On that same day, Chambers telephoned the Applicant to notify her of the Third Directions. A person answered the phone and in response to having been asked if they were Ms Elliot, they replied ‘yes’. It was then explained that it was a call from the Fair Work Commission and in response there was mumbling and then the call disconnected. A voicemail was subsequently left that same day advising the Applicant of the Third Directions. [8] On Friday, 31 March 2023, the Respondent applied to have the Applicant’s application dismissed pursuant to s 399A of the Act. Further, Chambers issued notification to the parties that the Applicant had failed to comply with the First Directions. The Applicant was further informed that should she fail to comply with the Third Directions, the Commission would proceed to consider the dismissal of her unfair dismissal application on the papers. Chambers attempted to telephone the Applicant that same say to advise of her non-compliance with the First Directions and that she was directed to respond by 1600hrs (AWST) on Monday, 3 April 2023 regarding her non-compliance to date; a voice message was left to that effect. [9] On Monday, 3 April 2023, Chambers emailed the parties noting the Applicant’s non- compliance with the Third Directions and confirmed that the Second Directions and hearing regarding the dismissal of the unfair dismissal application were vacated. [10] The exercise of the Commission’s powers under s 399A of the Act to dismiss an unfair dismissal application for the identified unreasonable conduct set out in subsections (1)(a)–(c) involves the exercise of a broad discretion.1 This type of matter involves two discretionary decisions. First, that the applicant has unreasonably failed to attend a conference or hearing, comply with a direction, or order, or discontinue the application after a settlement agreement has been concluded. Second, if the decision-maker is satisfied that the applicant has unreasonably failed to comply with one or more of their obligations referred to in s 399A(1) of the Act, the decision-maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed. [11] The Commission is required to consider the exercise of discretion under s 399A(1)(a) and (b) by reference to an objective evaluation of the Applicant’s conduct and whether such conduct was unreasonable in the circumstances. [12] It has, at all material times, been made clear to the Applicant that she was required to attend the Conference and to file materials in support of her unfair dismissal application and in addition, as to why that same application should not be dismissed. [13] The directions issued to the Applicant have been comprehensive, have highlighted the critical dates for filing materials, and have identified clearly what needed to be filed. -- 2 of 3 -- [2023] FWC 809 3 Furthermore, the Second Directions placed the Applicant on notice about the significance of filing her materials in support of her unfair dismissal application and addressing her failure to attend the Conference. [14] I have considered the submissions and evidence provided by the parties and have concluded, on balance, that the Applicant has unreasonably failed to attend a Conference and has failed on multiple occasions to comply with directions of this Commission relating to her unfair dismissal application. I am, therefore, persuaded that I should exercise my discretion under s 399A(1)(a) and (b) and dismiss her unfair dismissal application. In light of this, it has proved unnecessary to consider the dismissal of the unfair dismissal application under s 587 of the Act. [15] The decision is not one made lightly, and I have indeed adopted a cautious approach when dealing with the application to have the unfair dismissal application dismissed. An Order2 dismissing the unfair dismissal application is issued concurrently. DEPUTY PRESIDENT Matter determined on the papers. Printed by authority of the Commonwealth Government Printer <PR760844> 1 Hansen v Calvary Health Care Adelaide Ltd [2016] FWCFB 5223, [39]. 2 PR761039. -- 3 of 3 --