1
Fair Work Act 2009
s.394—Unfair dismissal
Sofia Beyene
v
Adhumic Nominees Pty Ltd as Trustee for the Milcon Properties Unit Trust
(U2020/11529)
DEPUTY PRESIDENT BEAUMONT PERTH, 9 DECEMBER 2020
Application for an unfair dismissal remedy - application to dismiss under s 587 - application
for an unfair dismissal remedy dismissed.
[1] On 24 August 2020, Ms Sofia Beyene (the Applicant) filed an unfair dismissal
application under s 394 of the Fair Work Act 2009 (Cth) (the Act) (original application).
Since filing the original application, the Applicant and her representative have repeatedly
failed to communicate in a timely manner with Chambers, have not complied with directions,
and have failed to present for conferences on 23 October 2020, 27 November 2020 and
30 November 2020. The Applicant’s conduct has necessarily caused the Commission to
consider whether her original application should be dismissed.
[2] In the circumstances of this matter, contacting the Applicant’s representative,
Employee Dismissal Claims, was difficult. Furthermore, the correspondence received directly
from the Applicant, indicated she may have struggled with English. It is for that reason that
the matter became protracted – as multiple attempts were made to secure the Applicant’s
attendance at conference.
[3] At this juncture, it should be said that there is no legislative or common law
requirement pursuant to which the Commission must persevere with an application in
circumstances where an applicant’s conduct clearly demonstrates an unwillingness to
participate in proceedings commenced at her or his initiative.1
[4] Following the Applicant’s non-compliance with directions on 23 September 2020 and
her non-attendance at the conference on 16 October 2020, Chambers issued directions on
23 October 2020 concerning the potential dismissal of the original application. The
Commission, in addition, permitted a change of name for the Respondent under s 586 of the
Act. The change made was from ‘The Milcon Properties Unit Trust’ to Adhumic Nominees
Pty Ltd as Trustee for the Milcon Properties Unit Trust (the Respondent).
1 Viavattene v Health Care Australia [2013] FWCFB 2532, [39].
[2020] FWC 6397
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 6397
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[5] The Respondent complied with the directions of 23 October 2020 and filed its
materials. Employee Dismissal Claims sent an email to Chambers on that same date excusing
the non-attendance of the Applicant on purported issues the Commission had experienced
concerning Microsoft Teams. In addition, Employee Dismissal Claims asserted that incorrect
contact details had been relied upon. Whilst holding the view that the representative’s reasons
for non-compliance and non-attendance were implausible, a conservative approach was
adopted because of the Applicant’s perceived literacy challenges, and observing that the
conduct of her representative was far from diligent. The Applicant’s representative requested
that the Applicant be heard in relation to the potential dismissal of the original application.
[6] A further email was received from Employee Dismissal Claims on 27 October 2020
providing a default telephone number for the purpose of future conferences. While the
Applicant sought to be heard concerning the dismissal of the original application, no
submissions or other materials were forthcoming (in compliance with the directions of
23 October 2020).
[7] With a view of obtaining the attendance of both Applicant and her representative, on
11 November 2020 the matter was listed for a conciliation conference on 27 November 2020.
The parties were directed to confirm their contact details by 17:00hrs (AWST), 25 November
2020. The Applicant did not comply with this direction.
[8] On 26 November 2020, Chambers telephoned both the number given by Employee
Dismissal Claims on 27 October 2020 and the Applicant’s personal phone number. On each
occasion, the phone call went to voicemail.
[9] On 27 November 2020 at 08:29hrs (AWST) and 08:31hrs (AWST), 30 minutes before
the listed conference was to start, Chambers again tried to call the Applicant and Employee
Dismissal Claims to no avail. Consequently, the Applicant failed to appear for the listed
conciliation conference. The matter was listed for a directions hearing by telephone on
30 November 2020. The parties were directed to provide their best contact number to
Chambers by 09:00hrs (AWST), 30 November 2020.
[10] Come 30 November 2020 at 12:51hrs (AWST), Chambers tried to call the Applicant.
The call went straight to the message bank of the telephone number provided. At 12:57hrs
(AWST), Chambers tried to contact the phone number given by Employee Dismissal Claims
(provided on Tuesday 27 October 2020) with the same result as previous attempts. Chambers
attempted to contact the Applicant and Employee Dismissal Claims on two more occasions to
no avail.
[11] On 30 November 2020, Chambers notified the parties that due to the Applicant’s non-
compliance and failure to attend the directions hearing, the matter would be programmed to
consider whether the unfair dismissal application should be dismissed. Directions were
issued, and the Applicant was directed to provide submissions as to why the original
application should not be dismissed under s 587 of the Act by 16:00rs (AWST), 2 December
2020.
[12] On 1 December 2020, the Applicant emailed Chambers stating that ‘the phone number
she had provided was her husbands I try to updated the number I send the updated phone
number for my representative unfortunately she didn't update it’. There was no further
correspondence received from the Applicant or her representative.
[2020] FWC 6397
3
[13] Consideration turns to whether the original application should be dismissed. In these
types of applications, one is always guided by the principle that the power to dismiss a
substantive application should only be exercised cautiously and sparingly; particularly where,
as here, the Applicant has sought orders for relief for her alleged unfair dismissal.2 That
cautious approach is said to be warranted because ordering the dismissal of an application
would result ‘in the complete extinguishment of an applicant’s right to have his/her
application for relief orders under beneficial legislation, heard and determined according to
law’.3
[14] Latitude has been provided to the Applicant in this matter for the reasons cited. The
Respondent and its representative have been most gracious in this respect, with the matter
being more protracted than it should have been. In the circumstances, I decided it appropriate
to determine the matter on the papers
[15] It would come as no surprise that I have decided to dismiss the original application. In
short, the Applicant has unreasonably failed to comply with directions of the Commission
relating to the original application, has failed to attend a listed mention/directions hearing, and
has not provided any material in support of objecting to the dismissal of the original
application, as directed. On any objective level, it can be concluded that the original
application has no reasonable prospects of success (see s 587(1)(c) of the Act). An order will
issue concurrently with this decision.4
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR724954
2 Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.
3 Ibid, [31].
4 PR725297.
WORK MMISSION
[2020] FWC 6397
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