Andrea Geary v Workforce International Group Pty Limited T/A Traffic Services Australia

[2016] FWC 9182

[2016] FWC 9182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrea Geary
v
Workforce International Group Pty Limited T/A Traffic Services Australia
(U2016/13228)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 2 November 2016, Ms Andrea Geary made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Geary said her employment had been terminated by Workforce International Group Pty Limited T/A Traffic Services Australia (TSA) on 19 October 2016.

[2] Directions were issued on 14 November 2016 and the matter was listed for hearing on 18-20 January 2017. Ms Geary was directed to file an outline of argument, outline of argument: objections, statement of evidence and document list by noon on 5 December 2016.

[3] Ms Geary did not file any material by noon on 5 December 2016 and an email was received from TSA’s representative on 6 December 2016 noting Ms Geary had failed to comply with Directions and a submission was made that the application is without any reasonable prospects of success. TSA further submitted that the application is frivolous and vexatious and should be dismissed.

[4] On 7 December 2016, the Commission telephoned Ms Geary to enquire as to the status of the matter. Ms Geary confirmed Australian Dismissal Services were still representing her and that she had provided her representative with all the information they had sought and they had said they would contact her. An email was then sent to Australian Dismissal Services which advised no material had been filed in the Commission in accordance with the Directions. Australian Dismissal Services telephoned the Commission later that day, and the representative advised she had not realised she had missed the Directions date and that extra time would be required. Australian Dismissal Services was advised they should make a request for an extension of time as soon as possible.

[5] An email was received by Australian Dismissal Services at 3.39pm (AEDT) on Wednesday 7 December 2016 where it was noted, “…Unfortunately this date has been inadvertently missed by us. We write accordingly to request a brief extension to the lodgement date – and I will arrange to have the materials lodged prior to week end.”

[6] On 8 December 2016, the Commission extended the period for Ms Geary to file her material to noon, Friday 9 December 2016. TSA was also given an extension to file its material to 4.00pm, Friday 16 December 2016.

[7] On 8 December 2016, TSA filed a Form F1 in the Commission and made an application to dismiss Ms Geary’s application for unfair dismissal remedy under s.399A(1)(b), s.587(1)(b) and s.587(1)(c) of the Act. TSA submitted as follows; Ms Geary freely resigned verbally and in writing; Ms Geary has failed to meet the Directions on the grounds of Australian Dismissal Services claiming the “date has been inadvertently missed by us;” Ms Geary has filed proceedings against the wrong employer; Ms Geary has refused an offer of private settlement and has an application without reasonable prospects of success. It said it also relies on the material it filed on 28 November 2016.

[8] On 9 December 2016 at 6.22pm (AEDT, 5.22pm Brisbane time), Australian Dismissal Services filed Ms Geary’s witness statement and submissions in relation to the jurisdictional objection raised by TSA in the Commission.

[9] On 12 December 2016, TSA’s representative emailed the Commission, submitting Ms Geary had again failed to comply with the revised Directions and reiterated its application to have the matter dismissed under s.587 and s.399A(1)(b) of the Act.

[10] On 15 December 2016, email correspondence was sent to Australian Dismissal Services seeking a response to TSA’s application to have the matter dismissed.

[11] On 16 December 2016, Australian Dismissal Services filed a response to TSA’s application to have the matter dismissed. In relation to s.587(1)(b) of the Act, Australian Dismissal Services submitted that TSA had stated no basis for such assertions and that there is no evidence that Ms Geary or the application are either vexatious or frivolous. It noted that Ms Geary has brought no other claims against TSA arising from her employment at any stage. In response to s.587(1)(c), Australian Dismissal Services made submissions as to the merit of the argument that there had been a dismissal and concluded that her claim is not without prospects of success.

[12] Australian Dismissal Services also responded to the application to dismiss under s.399A of the Act, submitting that an extension was sought and granted to 9 December 2016, after the deadline was inadvertently missed by Ms Geary and Australian Dismissal Services. It submitted that it represents parties in many hundreds of claims in the Fair Work Commission each year and that lodgement dates for materials are not met by many parties in many instances. It submitted that in many instances where there is late provision of materials, a corresponding extension is typically granted, and not opposed, for the other side to lodge their material.

[13] Australian Dismissal Services also submitted that late lodgement of five hours is not material to TSA’s opportunity to prepare for arbitration in January 2017 and that the application to dismiss should be dismissed.

Consideration

[14] In 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

[15] 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

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

[17] 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.

[18] 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.

[19] I am not satisfied that Ms Geary has unreasonably failed to comply with a direction of the Commission. She was of the view all material had been provided to her representative and she would be contacted by Australian Dismissal Services in due course. The material upon which she intends to rely was filed by her representative on 9 December 2016, with a delay in filing of less than six hours. Further, Ms Geary has not indicated an unwillingness to have her matter ready for hearing. As outlined, she has now filed her material and I am not persuaded that her delay in filing will result in prejudice or occasion unnecessary expense for TSA and nor will it delay the hearing of the matter in January 2017.

[20] It should be noted that I was not persuaded by Australian Dismissal Services’ submission that lodgement dates for materials are not met by many parties in many instances. As a general rule, parties must comply with Directions of the Commission and should not assume that non-compliance is acceptable. In the event a party needs an extension to file material, application should be made prior to the due date for consideration by the Commission. Whether non-compliance is reasonable or unreasonable will depend on the circumstances of each case.

[21] I have determined to also dismiss TSA’s application to dismiss under s.587(1)(b) and s.587(1)(c) of the Act. The submissions made by TSA were not developed and have not persuaded me to exercise my discretion to dismiss the application on this basis. TSA will have an opportunity to make submissions regarding its jurisdictional objections and the merits of the application at the hearing on 18-20 January 2016. This is only four weeks away.

[22] Finally, on the material filed, it does not appear Ms Geary has addressed TSA’s objection regarding the employer named in the matter. There are circumstances in which the Commission will amend the name of an employer but Ms Geary should file material in response to this particular objection ahead of the hearing in January 2017 for the presiding Member’s consideration.

[23] An Order giving effect to this decision will be issued with this decision.

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   PR 956665.

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