Alice Cranson v Peoplesmove Pty Ltd T/A Carhood
[2018] FWC 3127
•1 JUNE 2018
| [2018] FWC 3127 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alice Cranson
v
Peoplesmove Pty Ltd T/A Carhood
(U2018/2919)
| Commissioner Bissett | MELBOURNE, 1 JUNE 2018 |
Application for an unfair dismissal remedy.
On 21 March 2018, Mrs Alice Carson (Applicant) made an application seeking relief from unfair dismissal. She was employed by Peoplesmove Pty Ltd T/A Carhood (Respondent).
On 9 May 2018, the Fair Work Commission (Commission) issued directions that required the Applicant to file with the Commission and serve on the Respondent her submissions and witness evidence by “no later than noon on Monday, 28 May 2018”. The Respondent was required to file and serve its material by no later than noon on Monday, 18 June 2018.
In response to the directions, the Applicant filed with the Commission and served on the Respondent her submissions and witness evidence, which was received at 2.05pm on Monday 28 May 2018. The email attaching the submissions and witness evidence was copied to the Respondent in the same email in which it was delivered to the Commission.
On 29 May 2018, Mr Johnson of the Respondent filed a Form F1 in which the Respondent made an application pursuant to s.399A of the Fair Work Act 2009 (FW Act) that the application be dismissed. In the grounds for the application the Respondent said:
1. On the 9th of May, 2018 at 10:22AM AEST the FWC sent directions via email to Mrs Alice Cranson to lodge with the Fair Work Commission and serve on Carhood Group Limited an outline of submissions and any witness statements and other documentary material by no later than noon on Monday, 28 May, 2018.
2. Alice Cranson is being represented by an employment law specialist, Just Relations, whom also received correspondence with the direction timeline.
3. Mr Garry Dircks, a representative of Mrs Alice Cranson, lodged the submission at May 28, 2018 at 2:06PM via email.
4. Despite having legal representation, expertise and having been provided with a significant amount of latitude and time, Mrs Alice Cranson’s application was unreasonably submitted late and not in accordance with the directions of the FWC.
On 31 May 2018, in response to a request from my chambers, the Respondent indicated that it did not wish to make any further submissions with respect to the application and that the Commission could decide the matter on the basis of the material filed.
For the reasons given below it is not necessary to receive submissions from the Applicant to the matter.
Consideration
I am not satisfied that the Respondent has made out a case that the Commission should dismiss the application because the submissions of the Applicant were “unreasonably” submitted late and not in accordance with the directions.
The submissions of the Applicant were received two hours and six minutes after the required filing time. Commission staff followed up with the Applicant’s representative at approximately 2.00pm querying the failure to file submissions as required by noon that day. The Applicant’s representative advised that an error was found in the submissions which indicated that they required editing which was occurring at the time. It was expected that the submissions would be filed “shortly”.
Common courtesy would dictate that the Applicant’s representative should have advised the Commission and the Respondent that her material would not be filed in time but would be filed within the next couple of hours and sought a brief extension for this. This clearly did not happen. I would observe the tendency of parties to treat Commission directions as mere guidelines. It is unfortunate. I would also note that the Applicant’s representative also failed to acknowledge the late filing in the covering email to the material.
However, the delay in filing was minimal.
The delay of the Applicant in filing her materials has not created any prejudice to the Respondent in preparing and filing its material. It did not raise any prejudice or indicate in any way how it had been disadvantaged by the delay. Further, the Applicant has not consistently failed to comply with the directions of the Commission such that her conduct might be considered unreasonable. In these circumstances, I do not consider that the weight of the submissions of the Respondent, at their highest, provide a basis to dismiss the application.
In reaching this conclusion I have also taken into account the need to ensure a “fair go all round” in dealing with unfair dismissal applications before the Commission. To the extent necessary, a delay by the Respondent in filing its material of two hours would not be a basis for non-acceptance of that material.
The application to dismiss the unfair dismissal of the Applicant made pursuant to s.399A of the FW Act is therefore dismissed.
The Respondent is required to comply with the direction issued. The file will be returned to case management.
COMMISSIONER
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