Brenda Pawsey v Alsco Pty Ltd T/A Fresh & Clean
[2017] FWC 4778
•13 SEPTEMBER 2017
| [2017] FWC 4778 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brenda Pawsey
v
Alsco Pty Ltd T/A Fresh & Clean
(U2017/7790)
| Commissioner Platt | ADELAIDE, 13 SEPTEMBER 2017 |
Application for an unfair dismissal remedy – failure to comply with directions – s.399A application – application dismissed.
This decision deals with an application by the Alsco Pty Ltd T/A Fresh and Clean (Alsco), pursuant to s.399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application lodged by Ms Brenda Pawsey on 20 July 2017.
On 28 August 2017, a directions conference was conducted in respect of Ms Pawsey’s application. Ms Pawsey was represented by Mr George Adamczak of Injury Management SA Pty Ltd, a paid agent. Permission was granted for the purpose of that conference pursuant to s.596(2) of the Act. Alsco was represented by Ms Michelle Lucas.
On 28 August 2017, written Directions were issued advising that the matter would be listed for hearing on 28 September 2017 and that both parties were required to file and serve an outline of their submissions, witness statements and any documents upon which they would rely by 4.00pm 10 September 2017. In addition, the parties were advised that any s.596 applications to be represented by a lawyer or paid agent would also be required by 10 September 2017. As is my practice, I warned the parties that the deadlines were fixed, extensions were unlikely and advised that if the material was not received a reminder would be sent out that day and if not received a conference would be conducted soon thereafter which may result in the matter being dismissed if no material was provided.
On Friday 8 September 2017, my Associate sent the parties a reminder that submissions were due by 4.00pm on 10 September 2017.
Alsco filed its material on 10 September 2017.
At 10.18am on Monday 11 September 2017, my Associate sent an email to Ms Pawsey and her representative advising that the material required by the Directions had not been received and was now overdue, and requested the material to be provided immediately.
With no material having been received from Ms Pawsey, at about 2.00pm on Monday 11 September 2017, my Associate sent out a Notice of Listing for a ‘s.399A Directions Hearing’.
At 5.37pm on Tuesday 12 September 2017, an email request was received from Mr Adamczak seeking a three week adjournment of the matter. The request was denied.
A hearing was conducted at 9.30am on 13 September 2017. Mr Adamczak appeared for Ms Pawsey. Ms Lucas appeared for Alsco.
In response to a question as to why no material had been filed, Mr Adamczak said that his client was seeking to avoid legal costs and they had been seeking to settle the matter with Alsco who had made an offer which expired on 12 September 2017.
I put to Mr Adamczak that it appeared that Mr Pawsey had made a deliberate decision to ignore the Directions. Mr Adamczak did not dispute that view.
Ms Lucas then made an application that the matter be dismissed pursuant to s.399A of the Act on the basis that Ms Pawsey had failed to comply with the Directions issued by the Commission and that the case has no prospects of success.
In response, Mr Adamczak said his client was distressed by the dismissal, was seeking to avoid legal costs and had hoped that the matter would be settled.
Mr Adamczak did not dispute that Ms Pawsey had failed to comply with a direction of the Commission.
I asked Mr Adamczak if he was familiar with s.399A of the Act, he advised he was not. Mr Adamczak was offered an opportunity to review the provision but declined to do so.
Mr Adamczak did not contest the position that Ms Pawsey’s actions indicated a failure to prosecute her case.
I asked Mr Adamczak if he had anything further he wanted me to consider, and he reiterated the position detailed above.
Section 399A of the Act states:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 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.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Findings
There is no dispute that Ms Pawsey failed to comply with the Directions and file the material. It appears that this was a conscious decision by Ms Pawsey who was relying on a settlement being reached and seeking to reduce her legal costs. I note that no request for an extension of time to file the material was made prior to the deadline and no representations were made at the hearing that the material would be filed.
Ms Pawsey’s representative seems to be ignorant of the requirements of the Act (including s.596 and s.399A) and appears to be content with this position.
Ms Pawsey did not file any material, having been made aware that the Directions were not complied with. It is possible that Ms Pawsey is using this application as leverage to seek a settlement. It appears that Ms Pawsey has taken no action to prosecute her claim.
It is clear to me that Ms Pawsey’s action in failing to submit material satisfies the requirements of s.399A(1)(a) and (b) of the Act.
Ms Pawsey’s application is dismissed pursuant to s.399A of the Act. An Order[1] to this effect will be issued.
COMMISSIONER
Appearances:
G.Adamczak of Injury Management SA Pty Ltd on behalf of the Applicant.
M.Lucas on behalf of the Respondent.
Hearing details:
2017.
Adelaide.
13 September.
[1] PR596074
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<Price code A, PR596073>
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