Alexandra Smith v Sutherlands Childcare and Early Learning Centre

[2016] FWC 1502

[2016] FWC 1502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexandra Smith
v
Sutherlands Childcare and Early Learning Centre
(U2016/604)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 MARCH 2016

Application for relief from unfair dismissal.

[1] On 12 February 2016, Ms Alexandra Smith made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Smith’s employment had been terminated by Sutherlands Childcare and Early Learning Centre on 10 February 2016.

[2] On 15 February 2016, the Fair Work Commission sent correspondence to Ms Smith advising her that her application was not lodged within 21 days of the dismissal taking effect.

[3] On 18 February 2016, directions were issued and the matter was listed for hearing.

[4] Ms Smith was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 26 February 2016.

[5] Ms Smith did not comply with this direction.

[6] On 18 February 2016, Sutherlands sent correspondence to the Commission advising:

“Please note that we sold Sutherland's Child Care & ELC on 18 January, 2016. Ms Smith was notified on the 29 December, 2015 that we were selling the business, and we would be adhering to our obligations to pay out annual leave, leave loading, superannuation at the close of business on 15 January, 2016."

[7] On 22 February 2016, Sutherland Homes Pty Ltd filed an employer response. It stated that the business had been sold and that Ms Smith was informed on 29 December that where would be a new owner who would offer them new contracts from 18 January 2016. It was said Ms Smith’s employment ended on 15 January 2016. It objected to the application because it said Ms Smith had not been dismissed.

[8] On 1 March 2016, the Commission telephoned Ms Smith and left a voicemail requesting that she return the call.

[9] On 2 March 2016, Sutherlands filed an objection to the application and sought the dismissal of Ms Smith’s application. Sutherlands based their objection on the grounds of failure to comply with directions.

[10] On 2 March 2016, Ms Smith returned the Commission’s call from 1 March 2016. Ms Smith was advised that as the Commission had not received her submissions due 26 February 2016, Sutherlands had filed an objection to the application and sought its dismissal. Ms Smith stated that she thought she had provided her reasons in her application and that she had been advised that her application was not out of time. Ms Smith was advised Sutherlands application had been sent to the panel head and that it was possible that she would receive a letter requiring her to respond an explain why she had not complied with directions.

[11] On 2 March 2016, Ms Smith was sent correspondence informing her of Sutherlands’ section 399A application. Ms Smith was directed to file submissions and other documentary material in respect of Sutherlands’ application by close of business, on 14 March 2016. Ms Smith was advised that if she failed to comply with this direction, her application would be dismissed.

[12] On 3 March 2016, Ms Smith sent correspondence to the Commission containing her response to Sutherlands’ section 399A application. Ms Smith advised:

“I have been in touch with the Fair Work Commission several times regarding my claim. I have not always been able to get through and I have left my phone number to have my calls returned. I am not a person who is used to dealing with these kinds of proceedings….I was confused about the letter of hearing as I had submitted all documentation with my application. I have also received correspondence including both my evidence/documentation and Sutherland Childcare responses…I tried to call the commission to see if there was anything else needed and what happens next, when my call was returned I was told…to wait, my case had been sent to be reviewed and I would hear in the next couple of days via email. I have received two emails from you today and I still do not understand what I have done wrong or what I should do next.”

Conclusion

[13] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[14] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[15] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[16] In summary, that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
● the circumstances of each case is central;
● a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[17] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[18] I am not satisfied that Ms Smith has unreasonably failed to comply with a direction of the Commission. Even if I had found her non-compliance was unreasonable I would not in my discretion have dismissed this matter. There is a real dispute between the parties as to whether Ms Smith was advised on 29 December 2015 that her employment with Sutherland had ended and hence her application was not lodged within 21 days or, whether Ms Smith did not become aware of her dismissal until 10 February 2016 and hence her application was lodged within the 21 day time limit set by the Act. Ms Smith has not indicated an unwillingness to have her matter ready for hearing. In these circumstances, I will dismiss Sutherlands’ section 399A application. An order giving effect to this decision will be issued today.

[19] I note that Ms Smith seeks the payment of her redundancy pay. If Ms Smith has an entitlement to redundancy pay, she should contact the Fair Work Ombudsman as the Fair Work Commission does not have the power to order the payment of redundancy pay.

[20] The application will be set down for a hearing to determine:

1. The effective date of dismissal; and

2. If the dismissal took effect more than 21 days before the application was lodged, if Ms Smith should be granted an extension of time.

[21] The hearing will be set for 3:00pm on 21 March 2016.

DEPUTY PRESIDENT

 1 S.399A of the Fair Work Act 2009

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163]

 3   PR956665

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577811>