Belinda Nott v GSQ Holdings Unit Trust T/A Richmond Quarry

[2019] FWC 843

[2019] FWC 843

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
ss.394, 399A—Unfair dismissal

Belinda Nott
v
GSQ Holdings Unit Trust T/A Richmond Quarry
(U2018/11792)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 13 FEBRUARY 2019

Application for an unfair dismissal remedy – Fair Work Act 2009 (Cth) s.399A – applicant did not comply with directions – application by respondent to dismiss the originating application for this reason – applicant’s failure to comply found to be unreasonable – s.399A application granted – unfair dismissal application dismissed.

[1] On 15 November 2018, Mrs Belinda Nott (the applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against Champions Quarry 2 Pty Ltd/GSQ Holdings Unit Trust T/A Champions Quarry / Richmond Quarry. On 11 February 2019, I dismissed that application under s.399A of the FW Act. These are my reasons for so doing.

Background

[2] The respondent filed its response to the applicant’s unfair dismissal application on 26 November 2018, giving its name as GSQ Holdings Unit Trust T/A Richmond Quarry (the respondent). It raised a jurisdictional objection to the application, being that the applicant was not dismissed, but rather ‘resigned voluntarily’.

[3] This application was allocated to me on 20 December 2018.

[4] On 21 December 2018, I listed the matter for hearing both in relation to the respondent’s jurisdictional objection and the merits of the application in Lismore on 18 and 19 February 2019, and issued directions for the filing of written material.

[5] On 16 January 2019, the respondent filed its jurisdictional material in accordance with my directions.

[6] My directions included that the applicant was to file and serve an outline of submissions, witness statements and other documentary material she intended to rely on both in response to the respondent’s jurisdictional objection and in support of her application by no later than 4:00 pm on 7 February 2019.

[7] My chambers did not receive any material or correspondence from the applicant by 7 February 2019.

[8] At 9:19 am on 8 February 2019, my chambers wrote to the applicant advising that we had not received any material from her, and asking if she still wanted to go ahead with her application.

[9] At 11:46 am that day, the applicant emailed my chambers saying:

‘I am awaiting advice as to whether some of the evidence that I wish to rely upon can be used as it is currently evidence in another matter pertaining to the company and affidavit evidence filed by directors of the company in a Federal Court Case. That mater (which is unrelated to my claim however I wish to rely on some statements) was to have been heard on 5 February 2019, however due to a double booking by the Federal Court on behalf of the Judge this matter has now been delayed in its hearing until 19 February 2019. As such, would it be more appropriate that this matter Fair Work hearing is delayed so I can rely on that evidence or alternatively I seek a weeks [sic] extension to have this evidence filed.’

[10] The applicant left a voice mail message in chambers shortly after sending that email, and my associate returned her call in the afternoon. During that telephone conversation, the applicant repeated that she had expected that the Federal Court hearing to which she referred in her email would occur before the hearing of her application, so that parts of the evidence filed in the Federal Court that she believed were relevant to this matter would be publicly available for her to use in the Commission. She also advised that she had found out about the adjournment of the Federal Court hearing on ‘Friday afternoon’ (presumably meaning 1 February 2019). She did not offer an explanation for why she had not advised my chambers of her difficulties in putting together her material in the time between 1 February 2019 and the time of the conversation.

The respondent’s s.399A application

[11] At 3:06 pm on 8 February 2019, the respondent emailed my chambers saying:

‘… we strenuously object to any delay to the FWC proceeding and respectfully request that given Ms Nott has not provided her evidence by the due date, that her application be dismissed and she be ordered to reimburse us for our legal costs.’

[12] I listed this matter via telephone to deal both with the applicant’s adjournment and extension requests, and the respondent’s s.399A application to dismiss the originating application because the applicant had not complied with my directions.

[13] During the telephone proceedings on 11 February 2019, I put to the applicant that not only had she not filed any material by the deadline I had originally set, but she also had not sought an extension of time in which to file that material or an adjournment of the hearing date until after the original deadline had elapsed and my chambers had followed up with her. The applicant agreed with this, but said that this was because she had been waiting to find out whether she would be able to use any of the evidence filed in the Federal Court, and if so, how she could use it. She said she had only found out in the morning of 8 February 2019 – albeit before my chambers emailed her – that she would not be allowed to use the Federal Court evidence as part of her material in this matter. She asserted that she had not been ignoring my directions.

[14] I asked the applicant directly why I should not dismiss her application. The applicant said that it was because she was a ‘small person, and again, this is an example of what this business does to people’. When I put to the applicant that it was her own failure to comply with my directions that had led her to the position she was in, and not anything the respondent had done or not done, the applicant again repeated that she had been waiting to hear whether she could use the evidence filed in the Federal Court, so that she ‘didn’t put material that I shouldn’t have acquired in the ordinary course of business into a response’. I then asked the applicant why she had not told me that she was waiting for that advice and requested an extension of time in which to file her material. She again said that this was because she was ‘waiting to find out if I could even, just… what parts of the [Federal Court] case I could discuss, or what I couldn’t discuss’.

[15] The respondent did not seek to make substantial oral submissions. Mr Barnes simply said that the respondent had complied with my directions and that the directions were ‘pretty black and white’.

Consideration and conclusion

[16] Section 399A(1) of the FW Act says:

‘399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 [for an unfair dismissal remedy] if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.’ [my emphasis]

[17] The applicant conceded that she had not complied with my direction. In my view, she did so unreasonably. To be very clear, it is not the applicant’s intention to rely on the evidence filed in the Federal Court that I find unreasonable in and of itself. What was unreasonable was the applicant’s complete failure to communicate that intention and the difficulties posed by the adjournment of the Federal Court hearing to me or my chambers until it was too late.

[18] The applicant did not make any attempt to contact my chambers in the six days between finding out that the Federal Court hearing was to be adjourned (1 February 2019) and the deadline for filing her material in the Commission (7 February 2019). She did not suggest that she was incapacitated for any of that time so as to be unable to do so. The first time the applicant mentioned the Federal Court evidence that she alleged was so important to her case before the Commission was not until after my associate had taken the initiative to follow up with her, in the morning after her material was due. I do not accept that that is a reasonable course of action. The applicant’s insistence that she was waiting to hear whether she could use the Federal Court evidence might explain why she felt she could not file all her material by the deadline, but does not explain why she did not promptly inform my chambers of the situation. Even if, as the applicant implied, she was unsure whether she could discuss the Federal Court matter, she could easily have explained the situation without disclosing the substance of the Federal Court proceedings. Indeed, she did exactly that in her email of 8 February 2019.

[19] The reasonable thing for the applicant to have done would have been to inform my chambers as soon as she discovered that the Federal Court hearing would not precede the Commission hearing as she had anticipated – not six days later, and one day after the deadline for the filing of her material. I could then have considered her adjournment and extension requests in good time. Instead, the applicant did not make either request until after her original deadline had already elapsed, and even then, she only did so in response to my associate’s enquiry.

[20] For the above reasons, I have dismissed this application under s.399A(1)(b) of the FW Act.

SENIOR DEPUTY PRESIDENT

Appearances:

B Nott, the applicant, in person.

M Barnes for Champions Quarry 2 Pty Ltd/GSQ Holdings Unit Trust T/A Richmond Quarry.

Hearing details:

Sydney with telephone link to Lismore.

2019.

February 11.

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