Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp

[2013] FWC 7641

[2013] FWC 7641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 365 - Application to deal with contraventions involving dismissal

Sarineh Atakaramians
v
Baycorp (AUS) Pty Ltd t/as Baycorp
(C2013/5282)

DEPUTY PRESIDENT SAMS SYDNEY, 1 OCTOBER 2013

Application to deal with contraventions involving dismissal - application made 89 days ‘out of time’ - failure to attend conference convened by the Commission - failure to comply with directions - no ‘exceptional circumstances’ - application dismissed.

[1] An application, pursuant to s 365 of the Fair Work Act 2009 (the ‘Act’) was made by Ms Sarineh Atakaramians (the ‘applicant’) on 24 July 2013 alleging she was dismissed by Baycorp (AUS) Pty Ltd t/as Baycorp (the ‘respondent’) in contravention of Part 3-1 of the Act on 5 April 2013. As will be readily observed, the application was filed 89 days outside the statutory time limit set by s 366(1)(a) of the Act.

[2] According to the employer’s response to the application, the applicant had a history of counsellings in respect to performance and conduct issues over her two and a half years of employment. These issues were said to include:

● attending to personal calls and other activities while on the phone to debtors;
● swearing at fellow employees;
● poor productivity; and
● disrespect towards other employees.

[3] After a number of written warnings the applicant’s employment was terminated on 5 April 2013 for ongoing unacceptable conduct. She was paid two weeks in lieu of notice. The applicant claimed she was discriminated against, harassed and pressured to increase her hours of work because of her physical and mental medical condition.

[4] Pursuant to s 368 of the Act, the Fair Work Commission listed the application for conference on 13 August 2013. This listing was vacated at the request of the applicant and relisted on 12 September 2013. The applicant failed to attend. The respondent attended the conference with three of its officers and a solicitor, Ms A Wood.

[5] In the result, I directed my Associate to advise the applicant as follows:

‘His Honour has asked me to advise you as follows:

• You must provide an acceptable explanation for your failure to attend the conference on 12 September 2013. Otherwise, your application may be dismissed for want of prosecution.



• Assuming you have an acceptable explanation, your application was still filed 106 days out of time [as set out in respondent’s Form F8A - Employer’s Response]. s 366 of the Act requires a s 365 application to be filed within 21 days, unless there are ‘exceptional circumstances’ for not doing so.



• You are directed to advise His Honour’s Chambers by 4:00pm on 18 September 2013 as to whether you intend to proceed with your application. A failure to do so will be considered as a negative response to that question.



• Should you advise that you still intend to proceed with your claim, the issue of your application being made ‘out of time’ will need to be dealt with by the Commission. A telephone directions hearing will be listed for that purpose of setting directions for the filing and service by both parties of any evidence and submissions on that discrete point.’

[6] There was no response to this communication and the applicant has made no further contact with the Commission as of this date (1 October 2013).

[7] Section 366(1)(a) of the Act is expressed as follows:

‘366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.’

[8] The Commission observes that the applicant has failed to prosecute her claim, has failed to attend conferences convened by the Commission without any reasonable explanation and has made no attempt to comply with any of the directions above. Obviously, there has been no ‘exceptional circumstances’ (or indeed, any reason) put forward by the applicant to justify the exercise of the Commission’s discretion to extend the time for filing her application.

[9] Section 587 of the Act is expressed as follows:

‘587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.’

[10] Given the above regrettable circumstances, I propose to exercise my powers under s 587 of the Act, to dismiss this application. Specifically, the application has not been made in accordance with the Act.

[11] An order to that effect will be issued separately to this decision.

DEPUTY PRESIDENT

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